author: HUMPHRIES, Judge. DOMENGEAUX, Judge,

text:
    Carl STRETTON, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 5738.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Wm. Henry Sanders, Jena, for plaintiff-appellant.
    George & George, by John G. Munoz, Baton Rouge, Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendants-appellees.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Plaintiff-appellant, Carl Stretton, an employee of Penrod Drilling Company, brought this maritime personal injury action against Charles Guy Paul, also an employee of Penrod, and Hartford Accident & Indemnity Company in LaSalle Parish. In paragraph one of the petition the plaintiff alleged that:

“Hartford Accident & Indemnity Company, a foreign insurance company, authorized to do and doing business in the State of Louisiana, and at all material times herein having issued to Penrod Drilling Company and Charles Guy Paul a policy of insurance”

Hartford Accident & Indemnity Company filed an Exception of Improper Venue which the trial judge sustained, dismissing plaintiff’s suit. From this adverse judgment plaintiff has appealed. We reverse.

Plaintiff’s suit was instituted in LaSalle Parish, the domicile of himself and defendant, Charles Guy Paul. Neither Penrod Drilling Company nor Hartford Accident & Indemnity Company are residents of La-Salle Parish. Defendants’ Exception of Improper Venue is based upon C.C.P. Art. 73, which provides as follows:

“Art. 73. Action against joint or solidary obligors
An action against joint of solidary obli-gors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.
If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.”

The entire matter was considered in the District Court upon the contention by Hartford that neither Hartford nor Penrod were domiciled in the Parish of LaSalle and that Paul was made a defendant for the sole purpose of creating venue in LaSalle Parish under the theory that joint tort feasors may be sued in the parish where either is domiciled. Strangely enough the attorney for the plaintiff also considered this to be the sole issue in District Court and on appeal.

The trial judge found (we do not say that this was in error) that Paul was made a defendant for the sole purpose of establishing venue as to defendant Hartford, on the basis of joint tort feasors.

We are of the opinion that the facts of this case, in its present stage, are not correlative of the circumstances contemplated by the proviso in C.C.P. Art. 73. At the present stage of the proceedings, there has been no compromise between the plaintiff and Paul and there has been no dismissal after trial on the merits as to Paul. We are of the opinion that this matter can only be disposed of by C.C.P. Art. 76 which provides in part as follows:

“An action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled.”

We do not think that we can go beyond Art. 1 of the pleadings and C.C.P. Art. 76.

The petition states that Paul is insured by Hartford and Art. 76 states that an action against an insurer may be brought in the domicile of the insured. It is not even necessary, although done in this case, that the insured by made a party defendant.

For the above reasons the judgment of dismissal of the plaintiff’s petition is reversed and this matter is remanded to the District Court for further proceedings. The defendant-appellee is cast for all costs of this appeal.

REVERSED AND REMANDED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

In addition to the reasons cited by the majority, I am of the opinion that the issues presented by this appeal can be resolved by a proper application of LSA-C.C.P. Art. 73.

In his written reasons for judgment the trial judge stated as follows:

“Since Paul is a resident of LaSalle Parish and venue would be proper as to him under Code of Civil Procedure, Article 73, venue would be proper as to Hartford Accident & Indemnity Company if they are joint tort feasors. However, the second paragraph of Article 73 provides that in such instances venue is not proper if ‘. . . the joinder was made for the sole purpose of establishing venue as to the other defendants’.”

The trial judge found (prior to compromise of dismissal after trial), as a matter of fact, that plaintiff’s only purpose for naming Charles Guy Paul as a co-defendant was to obtain proper venue in LaSalle Parish as to Hartford. This factual finding notwithstanding, I feel that the trial judge erred in his construction of LSA-C.C.P. Article 73.

In his above quoted written reasons, the trial judge excluded the initial phrases of LSA-C.C.P. 73(2) which are crucial to an understanding of the statute and its operation.

Paragraph 2 of the article begins:

“If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, . .” (Emphasis added).

I am of the opinion that the above quoted phrase must be read in connection with the remainder of paragraph 2 and sets forth a requisite (compromise or dismissal after trial) which must be met before an inquiry can be made into plaintiff’s motives for joining a particular co-defendant. Statutes must be read as a whole, and portions thereof should not be taken out of context. See Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (La.1955); State v. Bones, 223 La. 839, 67 So.2d 99 (1953); Quick Finance Service, Inc. v. Youngblood, 320 So.2d 239 (La.App. 4th Cir. 1975).

An exception based upon improper venue is declinatory in nature (LSA-C.C.P. Article 925) and must be filed in limine litis (LSA-C.C.P. Article 928). At first glance, it may appear enigmatic to require a defendant to file an exception in limine litis and wait until after a compromise or trial to have its merits determined. However, venue under LSA-C.C.P. 73 is based upon the existence of a joint or solidary obligation between the resident and non-resident defendants. The determination of such a relationship often addresses itself to the very crux of the litigation, and it is undesirable that such a matter should be decided on the hearing of an exception. Thus, is essence, LSA-C.C.P. Article 73(2) requires that the exception of improper venue raised by the non-resident defendant (alleged joint or solidary obligor) be raised in limine but referred to the merits of the case.

Therefore, I feel that the trial judge should have considered Hartford’s exception to venue if and only after plaintiff’s case against the resident defendant, Charles Guy Paul, had been compromised or dismissed after trial on the merits.

Therefore, I find it unnecessary to rely upon the provisions of LSA-C.C.P. Art. 76 to support plaintiff’s contention of proper venue at this stage of the proceedings.

For the above and foregoing reasons, I respectfully concur.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Alice Voltz TOLER, Plaintiff and Appellant, v. William Franklin TOLER, D.D.S., Defendant and Appellee.
    No. 5749.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Louis B. Viviano, Opelousas for plaintiff and appellant.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for defendant and appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

Appellant herein, Alice Voltz Toler, neither appeared nor filed a brief in this ap-. peal prior to the time the case was called for oral arguments. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned and is hereby dismissed at appellant’s costs.

APPEAL DISMISSED.


author: WATSON, Judge.

text:
    Delores Migues PRADOS, Plaintiff-Appellee, v. Allen Lee PRADOS, Defendant-Appellant.
    No. 5751.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Daniel L. Regard, New Iberia, for defendant-appellant.
    Henry A. Bernard, Jr., New Iberia, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Defendant-in-rule, Allen Lee Prados, has appealed from a trial court judgment increasing the child support paid to plaintiff-in-rule, Delores Migues Prados, on behalf of the minor Shari Lynn Prados from the $50 per month awarded May 7,1971, to $125 per month, effective May, 1976.

The sole issue on appeal is whether the increase is an abuse of the trial court’s discretion. We affirm.

Allen Lee Prados testified that he had paid $50 per month in child support from the time of the original order in 1971 until November of 1975 when he voluntarily started paying $65 per month. He is self-employed as an electrical contractor and has been for about three years, employing approximately six people. His present wife does all of his bookkeeping; both the business and personal expenses are paid out of the same account. In 1971, at the time of the original award of child support, Prados was disabled and unemployed. His income for that year was between $5,000 and $6,000. He admitted that his financial condition had improved. His 1975 income tax return showed a net profit of $10,555 (Schedule C, line 21) and a gross income of $31,907. Prados and his second wife own a house, on which they pay notes of $136.55 per month. They have one other child, also a girl.

Delores Migues Prados, now Mrs. Thibo-deaux, testified that Shari’s expenses have substantially increased because she is now seven years old and in school. The listed expenses for the child show an estimated monthly total of $270. Plaintiff and her present husband, Kenneth Thibodeaux, have no children and live in a trailer, on which they pay notes of $106 per month. The child’s rent, food and utility bills were estimated at one-third of the total: $36 for rent; $80 for food; and $28 for utilities. Doctor’s bills of $12.50 per month were attributed to Shari’s allergies, which require a specialist’s treatment. The allergy medication costs $15 per month. Mrs. Thibo-deaux did not have any receipts to establish Shari’s monthly expenses, which were estimated. She has operated a beauty shop since February of 1976 but testified that, at present, all of her income from the shop goes into expenses. She previously earned from $45 to $65 per week working for someone else. Mrs. Thibodeaux does not have any help. She testified that she had agreed to pay her attorney a fee of $250, but the court did not award her this amount.

Kenneth Thibodeaux testified that his take-home pay is $850 to $875 per month.

The present Mrs. Prados testified that her husband’s business grossed $11,805.58 in the first quarter, but $12,303.39 was paid out in expenses, both business and personal. Among the business expenses listed for the first quarter are a workmen’s compensation premium for the entire year of $598 and $400 for purchase of a second-hand truck, both nonrecurring expenses. Mrs. Prados’ automobile is owned by the business and the business expenses include miscellaneous of $743.60 and lunch money of $225. The gasoline expense of $330.21 undoubtedly includes that for Mrs. Prados’ automobile. Personal expenses for the three of them were estimated at $631.52 per month. Their child is 18 months old. In addition, $65 per month is paid for Shari’s support, plus $9 per month for dancing lessons, premiums of $1.51 per month on a burial policy, premiums of $5.49 per month on an insurance policy insuring Mr. Prados payable to Shari, and hospitalization insurance for Shari of $4.70 per month.

There has been a clear change in Mr. Prados’ circumstances since the original award, when he was disabled and unable to work, whereas he is presently operating a profitable business. Shari’s expenses as a school student have materially increased over those she had as an infant. Although the testimony of the various parties and their estimates of income and expenses do not give a clear financial picture, the increase from the $65 per month Mr. Prados had been paying to $125 per month is not unreasonable. LSA-C.C. art. 231 provides for alimony in proportion to the needs of the one requiring it and the circumstances of the one paying it. Children of divorced parents residing with their mother are entitled to the same standard of living that they would have if they resided with their father. Ducote v. Ducote, 339 So.2d 835 (La., 1976). It is virtually impossible to determine Mr. Prados’ income in this instance because of the co-mingling of his personal and business expenses. The record indicates that Mr. and Mrs. Prados’ monthly personal expenses may exceed the $631.52 to which she testified, since many of their living expenses are attributed to the business. His financial situation has certainly improved substantially since 1971. An increase of $75 per month from the previous award for the support of the minor is not an abuse of discretion.

Mrs. Thibodeaux testified that her beauty shop does not presently operate at a profit. She performs all the everyday services required for Shari’s care and thereby contributes to her support. Ducote v. Ducote, supra.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed to defendant-in-rule-appellant, Allen Lee Prados.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Helen ARCENEAUX, Plaintiff-Appellant, v. MOTOR VEHICLE CASUALTY COMPANY et al., Defendants-Appellees.
    No. 5753.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.

      Caffery, Duhe & Davis by Jerry A. Ou-bre, New Iberia, Davidson, Meaux, Onebane & Donohoe by V. Farley Sonnier, Lafayette, for defendants-appellees.
    Piccione & Piccione by Peter C. Piccione, Lafayette, for plaintiff-appellant.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

In his written reasons for judgment the District Judge set forth a comprehensive statement of the facts pertinent to this litigation, and we adopt same as follows:

“On September 30, 1973, Helen Arcen-eaux was injured in an automobile accident off the Forty Arpent Road in Iberia Parish. On September 30, 1974, she filed a suit against the uninsured motorist carrier of the vehicle in which she was a passenger and against one ‘John Doe’.
Mrs. Arceneaux was a passenger in a vehicle travelling on the Forty Arpent Road that was forced off the road by a hit and run driver. She apparently had not ascertained the name of the hit and run driver and therefore alleged that he was unknown, thus ‘John Doe’.
On October 24,1974, the uninsured motorist carrier (Motor Vehicle Casualty Company) filed a third-party petition alleging that the hit and run driver was one Paul Barrilleaux of Iberia Parish, who was insured by Allstate Insurance Company, and brought them into the suit.
On May 22,1975, the plaintiff amended her petition to also bring Paul Barril-leaux and Allstate into the lawsuit.
Paul Barrilleaux and Allstate filed an exception to the petition and answered the pleadings with a general denial. The exception was one of prescription, claiming that since they were brought into the suit more than one year after the accident, that the claim to them had prescribed.
The facts of the case show that Helen Arceneaux was a passenger in a vehicle being driven by Mary Asberry, her daughter, and owned by the driver and her husband. While travelling at a moderate rate of speed, a vehicle attempted to pass them, but because of oncoming traffic had to return to the right side of the road suddenly. This sudden movement by the passing vehicle forced the car in which Mrs. Arceneaux was riding into a ditch, wherein she sustained certain injuries.
It is a finding of fact that when the passing vehicle forced the car in which Mrs. Arceneaux was riding off the road that there was some slight physical contact.
The car in which Mrs. Arceneaux was riding shall be referred to as the Asberry vehicle.
After the accident, Whitney, Guidry, Jr., a disinterested, solid citizen, stopped his car to see if the passengers in the Asberry vehicle needed assistance, and finding no immediate need, he then sped on to determine the license number of the passing car. He caught up with the car some miles later and identified it as a grey Oldsmobile with a 1973 license number of 3 C 414. He wrote this number down and later gave it to a State Trooper. The State Trooper testified that he made efforts to talk to the owner of this car, who was identified as a Mr. Paul Barrilleaux of 1316 Center Street in New Iberia, a 72 year old retired man. The trooper was unable to locate Mr. Barril-leaux, although the Sheriff’s Department of Iberia had no problem in serving him with many of the subpoenas and summons in this case.
The license number of Mr. Barrilleaux’s car, as well as the name of Mr. Guidry and another witness, were contained in the State Police report, a report which subsequently came into the hands of the plaintiff.
Mr. Barrilleaux and his wife testified that they knew nothing about the accident and this Court is convinced that they are telling the truth; however, this Court is equally convinced that Mr. Barrilleaux is the person who caused this accident. His car was well identified, as was he, by Mr. Guidry, and Mr. Barrilleaux himself testified that no one other than himself drives that car, and it has never been stolen. While this Court believes that Mr. Barrilleaux is telling the truth that he did not know of the accident, this Court is equally convinced that Mr. Bar-rilleaux was at fault, and that what actually happened was that Mr. Barrilleaux, on a day some two years ago, was going down this road, started to pass the Asber-ry car, and seeing an oncoming car, pulled to the right too fast, but did not realize that he touched the Asberry car, and did not realize that the Asberry car went into the ditch.”

Motor Vehicle Casualty Company filed a motion for summary judgment which was denied. Paul Barrilleaux and Allstate Insurance Company filed an exception of no cause or right of action as against the third party demand of Motor Vehicle Casualty Company and also an exception of prescription against the original plaintiffs. The exception of no cause of action was sustained as to Allstate and denied to Barril-leaux. The exception of prescription was referred to the merits and sustained thereon.

The trial judge further ruled that plaintiff was not covered under the uninsured motorist provisions of the policy issued by Motor Vehicle Casualty Company. Plaintiff has appealed contending that coverage existed under the Motor Vehicle Casualty Company policy and that prescription was interrupted against Paul Barrilleaux and Allstate Insurance Company.

THE MOTOR VEHICLE CASUALTY COMPANY POLICY

The policy issued by Motor Vehicle Casualty Company to the owner of the automobile in which plaintiff was travelling at the time of her injury contains the following provisions relative to uninsured motorist coverage:

“(c) ‘uninsured automobile’ means:
(1) an automobile with respect to the ownership, maintenance or use of which there is, and at least the amount specified by the finance responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy . . .;
or
(2) a hit-and-run automobile as defined;
but the term ‘uninsured automobile’ shall not include:
(i) an insured automobile,
(d) ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such ‘hit-and-run automobile’; . . . ”

The most convincing piece of evidence contained in the record is the police report prepared by the investigating officer, Trooper Gerald Latiolais of the Louisiana State Police. The Police Report contained the names, addresses and phone numbers of two witnesses to the accident. The report further states that the offending vehicle was an Oldsmobile bearing Louisiana License No. “3 C 414”. This evidence was easily obtainable by plaintiff, and she in fact possessed a copy of said report. We are of the opinion that the identity of either the owner or the operator of the offending vehicle in this case could have been ascertained without any great difficulty on plaintiff’s part. Plaintiff apparently made no attempt to speak with either witness to the accident nor did she pursue the matter of the license number of the offending vehicle. It is significant that Motor Vehicle Casualty Company, as defendant and third party plaintiff, ascertained the identity of both the owner of the automobile and his insurer in a short time.

For these reasons we find that the trial judge correctly ruled that the Barril-leaux automobile was not a “hit-and-run automobile” as contemplated by the uninsured motorist provision of the Motor Vehicle Casualty Company policy, and accordingly we affirm his ruling that no coverage was provided thereby.

PRESCRIPTION

Plaintiff amended her petition to include Barrilleaux and Allstate Insurance Company as defendants some nineteen months after the accident occurred. Since the action against Motor Vehicle Casualty Company is based on the contract of insurance and the suit against Barrilleaux and Allstate is founded in tort, those defendants are obviously not co-tort feasors or solidary obli-gors, and institution of suit against one will not interrupt prescription against the other.

However, plaintiff contends that the doctrine of contra non valentón should be applied here to interrupt prescription against Barrilleaux and Allstate. Our brothers of the First Circuit have succinctly stated the elements of the doctrine of contra non valentón in the case of Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir. 1975):

“Said doctrine is an exception to the general rules of prescription and establishes that prescription does not run against persons unable to bring an action or against persons who for some reason are unable to act. However, the mere failure on the part of a plaintiff to ascertain whom to sue within a year does not toll the running of prescription, Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1st Cir. 1970). Concealment of his identity by a defendant by silence alone is not enough to toll the running of prescription. Additionally, he must be guilty of some trick or contrivance tending to exclude suspicion and prevent the plaintiff from bringing his action. There must also be reasonable diligence on the part of the plaintiff to ascertain the identity of the party injuring him and the means of knowledge are the same in effect as knowledge itself, Martin v. Mud Supply Company, Inc., 239 La. 616, 119 So.2d 484 (1960).” (Emphasis added)

See also Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir. 1975), writ refused 320 So.2d 551, 553 (La.1975); Neyrey v. Lebrun, 309 So.2d 722 (La.App. 4th Cir. 1975); Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied 315 So.2d 144 (La.1975); Hyman v. Hibernia Bank & Trust Company, 139 La. 411, 71 So. 598 (La.1916).

The district judge found as a matter of fact that Barrilleaux did not attempt to conceal his identity from plaintiff but was merely unaware of the occurrence of the accident. Furthermore, plaintiff was possessed with the means to ascertain the identity of the tort feasor. For these reasons we find the doctrine of contra non valentem inapplicable to the facts presented herein and that plaintiff’s tort action against Bar-rilleaux and Allstate Insurance Company prescribed one year from the date of said accident. Thus we affirm the ruling of the trial court dismissing plaintiff’s action against Paul Barrilleaux and Allstate Insurance Company.

For the above and foregoing reasons the judgment of the district court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Helen Arceneaux.

AFFIRMED.

      . Although the issue is not raised, we find that the facts of this case preclude the application of LSA-R.S. 22:1406(D)(2)(B) relative to “underinsured motorists”.


author: HOOD, Judge. WATSON, Judge,

text:
    Succession of Walter D. CAPTAIN. Mrs. Lue Della CAPTAIN et al., Plaintiffs-Appellees, v. Walter D. CAPTAIN, Jr., et al., Defendants-Appellants.
    No. 5757.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Dissenting Opinion Feb. 1, 1977.

      Ulysses Gene Thibodeaux, Lake Charles, for defendants-appellants.
    Scotty G. Rozas, Lake Charles, for plaintiffs-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

The testator, Walter Dallas Captain, left a will bequeathing all of the property left by him to his seven surviving natural children.

One of those children, Walter D. Captain, Jr., in his alleged capacity as executor of the will of the testator, filed pleadings seeking a judgment “declaring the law which restricts the rights of illegitimate children to inherit” to be null and void, and “allowing the natural children to inherit the full estate of the decedent.” Mrs. Lue Della Captain, surviving mother of the testator, was named as the sole defendant in that action.

Another petition was filed in the same succession proceeding by Mrs. Lue Della Captain and by Sam Captain, the latter being a surviving brother of the testator, alleging that under the circumstances existing here the testator is prohibited by LSA-C.C. art. 1486 from leaving more than one-fourth of his property to his natural children. They seek a judgment decreeing parts of the testator’s will “to be contrary to the laws of the State of Louisiana, and conforming the will in accordance therewith.” The defendants in that action are all of the surviving natural children of the decedent.

Both of the above actions were tried jointly, and judgment was rendered by the trial court (1) dismissing the claims of the natural children of the testator to be recognized as his universal testamentary heirs, (2) ordering that the interest of the natural children of the deceased be reduced to one-fourth of the estate left by him, (3) recognizing the surviving mother and the surviving brothers and sister of the decedent as his legal heirs, and (4) ordering that the last will and testament of the decedent be probated. Walter D. Captain, Jr., appealed.

The determining issue presented is whether the articles of the Louisiana Civil Code, and particularly articles 1483 and 1486, which limit the right of natural children to receive property by donation from their natural father, are unconstitutional and void in that they violate the equal protection of the laws provision of the Fourteenth Amendment of the United States Constitution.

Walter Dallas Captain died testate in Cal-casieu Parish on August 30, 1975. He was survived by his mother, and by two brothers and a sister. He also was survived by seven illegitimate or natural children, one of whom is Walter D. Captain, Jr. The decedent had never been married and he never adopted anyone. He left a statutory will, executed on January 16, 1975, in which he acknowledged his natural children and bequeathed to them all of the estate left by him. The sole bequest made by him in that will reads as follows:

“I give and bequeath unto my beloved natural children: Carlyn Ann Captain, Walter D. Captain, Jr., Harmon Joseph Captain, Willard Edward Captain, Larry Captain, Shelia Captain and Evelyn Marie Captain, all of the estate that I leave to be shared and shared alike.”

The testator appointed Walter D. Captain, Jr., as executor of the will, with full seizin and without bond. Although the will has been filed in the record, it has not been probated, and Walter D. Captain, Jr., has never been formally appointed as executor.

Appellees, the mother and surviving brother of the testator, contend that since the decedent left a legitimate ascendant, two legitimate brothers and a legitimate sister, he is restricted by LSA-C.C. art. 1486 from donating more than one-fourth of his property to his natural children. They argue that under those circumstances they are entitled to judgment (1) reducing the bequest made to the testator’s natural children to one-fourth of the property left by him, and (2) recognizing the mother and brothers and sister of the decedent as his legal heirs, and as such entitled to the remainder of the estate.

The appellant, Walter D. Captain, Jr., contends that the Louisiana statutory scheme of regulating the distribution of a decedent’s estate, and of regulating the manner in which property may be donated, discriminates against illegitimate children and favors legitimate offspring. He argues that Articles 206, 919, 1483 and 1486 of the Louisiana Civil Code, which impose some of those regulations, are arbitrary and without a sound rational basis, and that they constitute an invidious discrimination against illegitimate children in violation of the equal protection of laws provision of the Fourteenth Amendment of the Federal Constitution. He seeks a judgment (1) declaring the above articles of the Civil Code to be unconstitutional and void, and (2) recognizing the natural children of the testator as his universal legatees, and as such entitled to all of the property left by him.

The articles of the Civil Code which appellant attacks read as follows:

“Art. 206. Illegitimate children, though duly acknowledged, can not claim the rights of legitimate children. The rights of natural children are regulated under the title: Of Successions.
Art. 919. Natural children are called to the inheritance of their natural father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the State.
In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall be determined, as is directed in the title: Of Father and Child.
Art. 1483. Natural children or acknowledged illegitimate children can not receive from their natural parents, by donations inter vivos or mortis causa beyond what is strictly necessary to procure them sustenance, or an occupation or profession which may maintain them, whenever the father or the mother who has thus disposed in their favor, leaves legitimate children or descendants.
Those donations shall be reducible in case of excess, according to the rules laid down under the title: Of Father and Child.
Art. 1486. When the natural father has not left legitimate children or descendants, the natural child or children acknowledged by him may receive from him, by donation inter vivos or mortis causa to the amount of the following proportions, to wit:
One-fourth of his property, if he leaves legitimate ascendants or legitimate brothers or sisters or descendants from such brothers and sisters; and one-third, if he leaves only more remote collateral relations.”

In Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the decedent died intestate leaving as one of his survivors an illegitimate child whom he had formally acknowledged. He left no surviving spouse, no ascendants and no legitimate descendants, but he did leave some other collateral relations. It was contended in behalf of the natural child that Articles 206 and 919 of the Louisiana Civil Code, which precluded her from inheriting under those circumstances, are unconstitutional in that they violate the equal protection and due process provisions of the Fourteenth Amendment. The trial court rendered judgment upholding the constitutionality of those articles of the Civil Code, and we affirmed. See Succession of Vincent, 229 So.2d 449 (La.App. 3 Cir. 1969). Our Supreme Court denied an application for writs (255 La. 480, 231 So.2d 395). The United States Supreme Court noted probable jurisdiction, and after considering the case on appeal, it affirmed the judgment of the trial court (401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288). In doing so, the Supreme Court said:

“But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it' is for that legislature, not the life-tenured judges of this Court, to select from among possible laws.
Jfc * £ * $ Hfi
“In short, we conclude that in the circumstances presented in this case, there is nothing in the vague generalities of the Equal Protection and Due Process Clauses which empowers this Court to nullify the deliberate choices of the elected representatives of the people of Louisiana.”

The decision rendered in Labine appears to us to be applicable here. We realize that that case involved an intestate succession, and that the court determined the constitutionality of Articles 206 and 919 of the Civil Code, whereas the instant suit involves a testate succession and the primary attack is on Articles 1483 and 1486. We nevertheless believe that the principles of law expressed and applied in Labine are applicable here and that on the basis of that decision we must hold the last cited articles to be valid.

The surviving mother and brother of the decedent argue that the facts of the instant suit provide even stronger grounds for upholding the constitutionality of Louisiana’s succession laws than existed in Labine, because in this case the trial judge recognized the natural children as being the legatees of one-fourth of the property left by the testator, whereas the illegitimate in Labine was excluded from inheriting any part of the property of the decedent.

The appellant concedes that Labine poses a formidable barrier to the claim of the natural children in this case, and he recognizes that Louisiana has a legitimate interest in protecting family life and regulating the distribution of property within the state. He argues, however, the Labine court did not attempt to justify its conclusions on any grounds other than by recognizing the State’s interest in regulating distribution of the decedent’s estate. He also argues that other decisions rendered by the United States Supreme Court after Labine seem to favor the extension of the Levy and Glona rule to illegitimates under all circumstances. See Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). They refer us, for instance, to Weber v. Aetna Casualty, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), where an illegitimate was held to be entitled to death benefits under the Louisiana Workmen’s Compensation Law. In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), an illegitimate was held to have the right to receive support from his natural father. And, in Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), the court held that an illegitimate had the right to receive Social Security benefits despite contrary provisions of state law.

We have considered the cases cited by the appellant, but have concluded that the Supreme Court did not intend to overrule or modify the holding in Labine by those decisions. In Weber, supra, for instance, the court distinguished the Labine case as follows:

“. . .In Labine, the Court upheld, against constitutional objections, Louisiana intestacy laws which had barred an acknowledged illegitimate child from sharing equally with legitimate children in her father’s estate. That decision reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders. Id., at 538, 91 S.Ct., at 1020. The Court has long afforded broad scope to state discretion in this area. Yet the substantial state interest in providing for ‘the stability of . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,’ Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969), is absent in the case at hand.”

The appellant cites statistics, not in the record, which indicate that during the period from 1940 to 1960 there was a substantial increase in the number of illegitimates born in Louisiana. He argues that “the traditional denial of legal equality of illegit-imates, therefore, has done little to discourage their conception and promote legal family ties.” He contends that on that additional ground we should depart from the ruling in Labine. We find no merit to that argument. Among other reasons, we note that the statistics quoted do not show what the illegitimate birth rate might have been in Louisiana without the above laws, or whether there were other circumstances which may have accounted for the increase in that birth rate.

We conclude that articles 1483 and 1486 of the Louisiana Civil Code do not violate the Equal Protection clauses of the United States Constitution. The regulation of descent and distribution are peculiarly within the powers reserved for the states. The provisions of the cited articles serve the vital interests of the state by encouraging marriage, by discouraging illegitimacy, by promoting stronger family ties and by contributing to the stability of land titles. The articles thus are not arbitrary and without a sound rational basis, and they do not, constitute an invidious discrimination against illegitimates.

Since Articles 1483 and 1486 of the. Louisiana Civil Code are valid and enforceable, the judgment rendered by the trial court correctly declares that the bequest which the testator made to his natural children must be reduced to one-fourth of the. estate left by him, and that the surviving mother, brothers and sister of said decedent should be recognized as his legal heirs.

For the reasons assigned, the judgment, appealed from is affirmed. The costs of this appeal are assessed to Walter D. Captain, Jr., the appellant.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissenting.

This case presents squarely the constitutionality of the statutory limitation on a person’s capacity to donate by will to illegitimate children when there are no legitimate descendants.

While several other articles of the Louisiana Civil Code were mentioned by counsel in argument and by the majority in its opinion, the only article which is at issue is LSA-C.C. art. 1486, which reads as follows:

“When the natural father has not left legitimate children or descendants, the natural child or children acknowledged by him may receive from him, by donation inter vivos or mortis causa to the amount of the following .proportions, to-wit:
“One-fourth of his property, if he leaves legitimate ascendants or legitimate brothers or sisters or descendants from such brothers and sisters; and one-third, if he leaves only more remote collateral relations.”

This case is not concerned with a situation where a parent leaves legitimate children or descendants. Also, this is not a situation where a parent has died intestate and a claim is made by a person or persons claiming to be illegitimate offspring. The latter factual situation has been considered by the United States Supreme Court in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971) and resolved against the illegitimates.

Taking the traditional view in the present case, the majority concludes that article 1486 does not violate the equal protection clause of the United States Constitution and that the provisions of this article:

“. . . serve the vital interests of the state by encouraging marriage, by discouraging illegitimacy, by promoting stronger family ties and by contributing to the stability of land titles.”

As to the stability of land titles, there is no connection between a prohibition against a donation mortis causa to an illegitimate child and land titles. Apparently the majority is concerned with the situation in an intestate succession where, under present law, an illegitimate is not called to the parent’s succession, and the obvious difficulties in establishing that a decedent has left no illegitimate children. That is not the situation here. A specific parental bequest by will, as attempted by Captain, the deceased, raises no problem with land titles.

As to the promotion of marriage, prevention of illegitimacy, and strengthening of family, there is, in reality, little or no connection between the provisions of LSA-C.C. art. 1486 and these goods things. See the call for a modern re-appraisal of these notions in Succession of Fuselier, La.App., 325 So.2d 296 at 301, footnote 5, where Beer, J., attacks the concept that great social purposes are served by prohibiting testamentary bequests to illegitimates.

The limitation on bequests to illegiti-mates is, in my view, an arbitrary and unreasonable discrimination against persons holding that status, a condition which they did not choose, earn, or cause in any manner. As recently stated in 37 Louisiana Law Review 59:

“Family life, for instance, and the moral perspectives of society have changed drastically in the last 150 years; yet there has been little significant change in the way our law regulates the parent-child relationship. It continues to burden illegitimate children with disabilities which no longer bear a reasonable relationship to the state’s interest.”

In my view, Louisiana Civil Code art. 1486 violates the Fourteenth Amendment to the Constitution of the United States which guarantees equal protection of the law and, additionally, violates Art. 1, § 3 of the Louisiana Constitution of 1974 which provides in part:

“No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.”

For these reasons, I respectfully dissent.


author: FORET, Judge.

text:
    C. C. BOOTHE, Plaintiff-Appellant, v. BOARD OF SUPERVISORS OF ELECTIONS FOR the PARISH OF CATAHOULA et al., Defendants-Appellees.
    No. 5765.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Chet D. Traylor and Samuel T. Singer, Winnsboro, for plaintiff-appellant.
    Michael C. Barron, Baton Rouge, for defendants-appellees.
    McKeithen, Burns & Lewellyan by Don C. Burns, Columbia, for intervenor-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

On May 5, 1976, in the Seventh Judicial District Court, Catahoula Parish, C. C. Boothe filed this “Petition for Writ of Injunction” against defendants, Board of Supervisors of Elections of, and Registrar of Voters for, the Parish of Catahoula, and the Louisiana Secretary of State, wherein he prayed for an order “Directed to the defendants and restraining, enjoining, and prohibiting defendants, their agents, and any other persons acting on their behalf from holding the recall election which has been set for June 1, 1976 . . . ”. Judgment was rendered denying plaintiff’s application for injunctive relief, from which judgment plaintiff has appealed devolutively.

Inasmuch as the election of June 1, 1976, has already been held and the results thereof promulgated, the matter has become moot, and any judgment rendered by this Court would have no legal effect whatsoever. Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960); Cain v. Board of Supervisors, Ouachita Parish, 335 So.2d 711 (La.App. 2 Cir. 1976); Cook v. Cook, 320 So.2d 612 (La.App. 4 Cir. 1975), writ refused, La., 323 So.2d 477; Ardoin v. Ardoin, 306 So.2d 476 (La.App. 3 Cir., 1975); Hines v. Village of Goldonna, 136 So.2d 140 (La.App. 3 Cir. 1961).

Accordingly plaintiff’s suit is dismissed, and all costs of this appeal are assessed against the plaintiff.

APPEAL DISMISSED.


text:
    Shirley R. TUCKER, Defendant and Appellant, v. James E. TUCKER, Plaintiff and Appellee.
    No. 5768.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    David A. Sheffield, Alexandria, for defendant and appellant.
    Knight E. Doggett, Alexandria, for plaintiff and appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

Mr. and Mrs. Tucker (appellee and appellant respectively) were judicially separated by a judgment of the Ninth Judicial District Court in and for Rapides Parish, Louisiana, in favor of the wife on the grounds of abandonment (LSA-C.C. 138(5)). She was awarded custody of the couple’s fifteen year old daughter, and $300.00 per month alimony (pendente lite) and child support. After the lapse of one year and sixty days without the institution of divorce proceedings by Mrs. Tucker, her husband filed suit for divorce on the basis that the parties had not reconciled during that period (LSA-R.S. 9:302). The divorce was granted on July 26, 1976, and the husband was ordered to pay the sum of $150.00 per month as child support for the daughter, whose custody was permanently awarded to the wife. The wife’s claim for alimony in the amount of $150.00 per month under Louisiana Civil Code Article 160 was rejected.

The divorce judgment was signed on July 27, 1976, and there was no request that notice of the date of signing be given the defendant. On the following day, July 28, 1976, defendant’s attorney made an oral motion for appeal of the portion of the divorce judgment which denied Mrs. Tucker permanent alimony. The motion was granted. The return date was set for September 27, 1976, and a devolutive appeal bond was fixed in the amount of $250.00. Defendant did not post the appeal bond until September 13, 1976.

We ex proprio motu dismiss this appeal for the reason that it has not been timely perfected. Under the law (C.C.P. arts. 3942-3943), a party has thirty (30) days from the expiration of the time for applying for a new trial within which to perfect an appeal, which includes furnishing the required security. (No new trial was applied for in this case.)

Judgment was rendered on July 26, 1976, after a hearing on the merits. The judgment was signed on July 27, 1976. Counting seven days exclusive of legal holidays from the day judgment was signed, as required by C.C.P.1974, one learns that the thirty day delay for perfecting an appeal from a judgment denying permanent alimony commenced running on August 6, 1976, and expired on September 5, 1976.

The record reflects the bond for appeal was furnished on September 13, 1976, six days after the delay expired. Failure to timely furnish security leaves the appeal imperfect and deprives this court of jurisdiction. C.C.P. arts. 2087, 3942, 3943; Freeman v. Liberty Mutual Insurance Company, 289 So.2d 875 (La.App. 3rd Cir. 1974).

Accordingly, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


text:
    James Ellis WILLIAMS, Jr., Individually and as Administrator of the Estate of the minor Patricia Louise Williams, Plaintiffs-Appellants, v. SISTERS OF the INCARNATE WORD OF GALVESTON, TEXAS, d/b/a St. Frances Cabrini Hospital, Inc., and Argonaut Southwest Insurance Company, Defendants-Appellees.
    No. 5774.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Martin S. Sanders, Jr., Winnfield, for plaintiffs-appellants.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, James Ellis Williams, Jr., instituted this action on behalf of his minor daughter, Patricia Louise Williams, against the defendants-appellees, St. Frances Cabrini Hospital, Inc., of Alexandria, Louisiana, and its insurer, Argonaut Southwest Insurance Company, for injuries received by the minor while she was a patient at that hospital. He also claims damages individually for medical and dental expenses resulting therefrom. From a judgment in favor of defendants dismissing plaintiff’s demand, the latter has appealed. We affirm.

On the evening of January 31, 1975, Patricia Louise Williams, age 13, was admitted into the St. Frances Cabrini Hospital in Alexandria to undergo tests relative to symptoms of dizziness and fainting which she had recently experienced. Miss Williams’ parents obtained cots and spent the night of January 31st in their daughter’s hospital room. On the morning of February 1, 1975, at approximately 7 o’clock A.M. a nurse’s aid, Linda Mikel Straughter, entered Miss Williams’ room to make a routine check of her vital signs. Apparently Mr. Williams had already departed the hospital at that time.

The testimony of Miss Williams and her mother vis a vis that of Miss Straughter is somewhat contradictory. Mrs. Williams and her daughter testified that the nurse’s aid informed them that the patient was required to take a bath at that time. Mrs. Williams allegedly informed Miss Straughter that she felt her daughter should not be required to bathe, and the nurse’s aid persisted. On the other hand, Miss Slaughter's testimony did not indicate that any dispute occurred over the necessity of the patient’s bathing. Miss Straughter testified that she merely inquired as to whether any assistance was needed by Miss Williams in taking her bath. However, all the witnesses do agree that Mrs. Williams informed the nurse’s aid that if any assistance was required by her daughter she (the mother) would administer same.

Mrs. Williams and her daughter then entered the bathroom which was contained within the particular hospital suite. The patient proceeded to shower while her mother stood by to assist. After showering Miss Williams dressed in the bathroom and walked back toward the hospital bed when she became weak and dizzy and fell, striking her mouth on the edge of a table and damaging several teeth. Mrs. Williams stated that she did not actually see her daughter’s mishap but heard the impact of the fall. Although the record is unclear, it appears that Mrs. Williams remained in the bathroom for a few seconds after her daughter exited therefrom. Miss Straughter, the nurse’s aid, was not present in the hospital room at the time of the incident, having left to continue her routine morning rounds.

The trial judge found that the hospital was not guilty of any negligence which caused the injury to plaintiff’s daughter.

In the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974), our Supreme Court has stated the duty of a hospital toward its patients as follows:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.”

However, the hospital’s duty has been traditionally limited by the jurisprudence, and the oft-quoted limitation has been recently reiterated in Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App.2d Cir. 1976):

“ ‘. . . On the other hand, a private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.’ ” (Emphasis added).

See also Guidry v. State, Department of Hospitals, 317 So.2d 222 (La.App. 3rd Cir. 1975), writ refused, 320 So.2d 904 (La.1975); Leblanc v. Midland National Insurance Company, 219 So.2d 251 (La.App. 3rd Cir. 1969); Killgore v. Argonaut—Southwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968), and DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir. 1968).

In the instant case the nurse’s aid, Miss Straughter, testified that she was aware that Miss Williams was “in for dizziness”. She therefore inquired as to whether the patient required any assistance in taking her daily bath or shower. After being informed by the patient’s mother that the latter would assist if necessary, the nurse reasonably assumed that the patient was in good hands. Under the factual context presented herein, we are of the opinion that neither Miss Straughter nor any other reasonable person would have anticipated that the patient might require further safeguarding in light of the fact that the patient’s own mother had offered to watch over her.

In summary, the law requires that hospital personnel safeguard and tend to each patient in a manner commensurate with that individual’s infirmity. The hospital properly discharged that duty when the nurse’s aid offered to assist plaintiff’s daughter in taking her bath. The nurse was relieved of performing that task by the patient’s own mother who preferred to attend to the matter herself. We see very little more that the nurse’s aid could have done except possibly assist the mother in her assistance of the child. Such action was obviously uncalled for and unnecessary.

For the above and foregoing reasons we concur with the trial judge’s holding that the defendants-appellees were free from any negligence in causing the injury to plaintiff’s daughter, and accordingly we affirm the judgment of the trial court. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. Marvin STINE and Peggy L. Stine, Defendants-Appellants.
    No. 5787.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    John L. Van Norman, III, Lake Charles, for defendants-appellants.
    Joe E. Bass, Jr. and Eugene A. Bouquet, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendants appeal from a judgment awarding plaintiff the principal sum of $680.00 for past due insurance premiums on six insurance policies. Defendants contend on appeal that the trial court rendered judgment on the basis of evidence which was inadmissible and insufficient. We affirm.

At trial, in support of its claim, plaintiff introduced the testimony under cross-examination of both defendants; the testimony of E. E. Henson, its sole representative in Southwest Louisiana; a copy of each insurance policy, with endorsements attached, certified as true copies of the originals by R. A. Frechette, Accounting Manager of the plaintiff company; interrogatories propounded by defendants to plaintiff and the sworn answers thereto of R. A. Frechette; and, a sworn itemization of the account of defendants with plaintiff. Based upon the above the trial court rendered judgment as prayed for by the plaintiff.

Appellants contend that the trial court erred: (1) in concluding that this was a suit on open account and that the sworn itemized statement was admissible in evidence pursuant to the provisions of LSA-C.C.P. Article 1702; (2) in allowing in evidence the interrogatories and sworn answers thereto; and, (3) in concluding that plaintiff had proved its demand by a preponderance of the evidence.

We conclude that the trial court erred in allowing the sworn itemized statement in evidence, over objection of defendants, however, we find that there is other admissible evidence in the record which establishes plaintiff’s claim by a reasonable preponderance of the evidence.

The trial court concluded that the instant suit was one on open account and that the itemized account sworn to by plaintiff’s accounting manager was admissible in evidence. In this connection the trial court reasoned as follows:

“ . . . the court finds this to be a suit on an open account . . While it is true that C.C.P. Article 1702 speaks of a confirmation of a default, its reference to the admissibility of an affidavit cannot be construed as limiting the admissibility of such an affidavit only to a default confirmation proceeding. If an affidavit is admissible evidence in confirming a default on an open account, it is admissible evidence in a suit on an open account in which an answer has been filed. It may not be sufficient proof in a contested open account suit, but it is nevertheless admissible in evidence . . . ”

We find it unnecessary to express an opinion regarding the trial court’s conclusion that a sworn itemized statement is admissible in a suit on open account in which an answer has been filed for we determine that this being a suit on contract the sworn itemized statement was inadmissible.

Louisiana considers an insurance policy as a contract between insurer and insured. Smith v. North American Company for Life, Accident & Health Insurance Company, 295 So.2d 483 (La.App. 3rd Cir. 1974), writ granted, 299 So.2d 360 (La.), reversed on other grounds, 306 So.2d 751 (La.); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972), writ refused, 261 La. 824, 261 So.2d 230. This being so an action by either the insured or insurer to enforce the provisions of such an agreement is one sounding in contract. Of course every insurance policy contains a provision which requires the insured to pay a stated premium for the protection which the policy affords. Our courts have consistently held, in considering whether a suit for past due insurance premiums was barred by the prescription of three or ten years, that such suit was not one on open account but rather one in contract subject to the prescription of ten years. In McElroy v. Parry, 152 So.2d 793, 794 (La.App. 2nd Cir. 1934) the court stated:

“ . . Each policy when-issued was a separate contract between the insurer and the insured, and the policy itself was the best evidence of the contract and the amount due thereunder. We think it clear that under said written contract, the insurer could have sued and recovered, provided it had filed suit within ten years after the premium was due, and that the prescription of three years would not have been a bar to said action

The holding in McElroy, that the general prescriptive period of ten years is applicable in an action for past due premiums has been followed in, among others, the following cases: Calvert v. Harper, 205 So.2d 193 (La.App. 2nd Cir. 1967); Great American Indemnity Co. v. Laird, 73 So.2d 6 (La.App. 2nd Cir. 1954); Calhoun & Barnes, Inc. v. Epstein Land & Improvement Co., Inc., 165 So. 539 (La.App. Orl.Cir. 1936) and, Commercial Insurance Agency, Inc. v. Wilson, 293 So.2d 246 (La.App. 3rd Cir. 1974). A holding that for purpose of determining the admissibility of evidence a suit for past due insurance premiums is one on open account would be clearly inconsistent with the cited authority. Accordingly, we hold that the instant suit is one in contract and not on open account and therefore the trial court erred in admitting in evidence and in considering the sworn itemized statement of account. LSA-C.C.P. Article 1702 has no applicability to actions founded on insurance contracts.

As heretofore mentioned, excluding consideration of the sworn itemized statement of account there is other admissible evidence in the record which establishes plaintiff’s demand by a preponderance of the evidence.

E. E. Henson, plaintiff’s sole representative in Southwest Louisiana, testi-fled that he had a long standing business relationship with defendants and that each of the policies in question were written at the direction of the insured. Mr. Henson testified further that four of the policies were cancelled upon request of Mrs. Stine and that the other two were cancelled for non-payment of premiums. Defendants did not deny issuance and receipt of the several policies and endorsements thereto, nor did their testimony substantially conflict with that of Mr. Henson. The interrogatories and answers thereto by Mr. Robert Fre-chette, accounting manager of plaintiff, set forth with clarity and specificity the property covered by the various policies; the date issued; the perils insured against; and, the cancellation date of each and the method employed in computing the amount owed by the insured. These interrogatories and the sworn answers thereto were admissible in evidence on trial under the provisions of LSA-C.C.P. Articles 1428 and 1491, Mr. Frechette being in the State of Georgia on the date of trial. A certified copy of each of the policies sued on were admitted in evidence. These policies, together with the endorsements thereto annexed, reflect the initial premium charge, the cancellation credit and the earned premium which was due on cancellation. The policies do not reflect the dividend credits which the insured were allowed against each earned premium, however, the defendants can hardly complain about the allowance of these credits. Defendants offered no evidence to contradict the showing made by plaintiff. Under the circumstances we conclude that the admissible evidence establishes plaintiff’s demand by a reasonable preponderance of the evidence.

For the reasons assigned the judgment appealed from is affirmed, appellants to pay all costs of this appeal.

AFFIRMED.


text:
    Frank COSENZA, Sr., et ux., Plaintiffs, v. AETNA INSURANCE COMPANY et al. CITY OF PINEVILLE, Louisiana, Defendants-Third-Party Plaintiffs-Appellants, v. PARISH OF RAPIDES, Through the RAPIDES PARISH POLICE JURY, Third-Party Defendant-Appellee.
    No. 5794.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Ford & Nugent by William M. Ford, Alexandria, and Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for defendants-third party plaintiffs-appellants.
    Wilson & Sexton by R. Gray Sexton, Baton Rouge, James C. Downs, Alexandria, for plaintiffs-appellees.
    Stafford, Randow, O'Neal & Scott by Grove Stafford, Jr. and John W. Scott, Alexandria, Gravel, Roy & Burnes by Richard V. Burnes, Alexandria, Gist, Methvin & Trimble by Dorwan G. Vizzier, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, WATSON, and FORET, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Mr. and Mrs. Frank Cosenza, Sr., instituted this action for damages (resulting from an alleged unlawful arrest) against several parties, including defendant-third party plaintiff-appellant, the City of Pineville. The City of Pineville filed a third party demand against the Parish of Rapides, third party defendant-appellee herein. The Parish of Rapides filed a motion for summary judgment which was granted. From this judgment the city of Pineville has appealed. We affirm.

On or about June 4, 1974, Mr. and Mrs. Gerard Guillory, residents of Pineville, Louisiana, appeared before the Clerk of the City Court of Pineville, Louisiana, Mrs. Betty DeKeyser, and executed a sworn affidavit charging one Mrs. Frank Cosenza with an alleged violation of LSA-R.S. 14:59(7). Acting upon this information, Mrs. DeKeyser issued a warrant for Mrs. Cosenza’s arrest, and same was carried out by members of the Pineville City Police Department. The record reveals that the wrong “Mrs. Frank Cosenza” was arrested, and this litigation ensued.

The City of Pineville specifically denied any responsibility for the actions of Mrs. DeKeyser, the Clerk of City Court, but in the alternative (in its third party demand against the Parish of Rapides) alleged that the parish and itself were “joint employers or masters of the said City Court”. In his written reasons for judgment on the parish’s motion for summary judgment, the trial judge stated:

“The evidence is clear and uncontradicted that the City Court Clerk, Mrs. Betty DeKeyser, is in no way an employee of Rapides Parish, Louisiana.”

This appeal presents a single issue for determination: Is the Parish of Rapides legally responsible for the actions of the Clerk of the City Court of Pineville, Louisiana? We think not.

The Legislature has provided for the creation of the numerous City Courts in existence in our state pursuant to the authority granted by LSA-Const. 1921 Art. 7, Sec. 51, and continued in LSA-Const. 1974 Art. 5, Sec. 15. See also LSA-R.S. 13:1872, 13:1951-52.

Our courts have previously held that a “state office” is one created by the Legislature or the Constitution. See State v. Dark, 195 La. 139, 196 So. 47 (La.1940); State v. Titus, 152 La. 1011, 95 So. 106 (La.1922). In the case of Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (La.1952), the office of City Judge was held to be a “state office”.

Pursuant to LSA-R.S. 13:1884, each City Judge:

“. . . shall appoint a Clerk for both the civil and criminal sections of the court who shall serve at the pleasure of the judge and until his successor is appointed and qualified.”

The salary of the City Judge is paid in different proportions by his particular city and parish as well as by the state of Louisiana. LSA-R.S. 13:1874. The salary of the Clerk of a City Court is paid, in equal proportions, by the city and parish of the court’s domicile. LSA-R.S. 13:1888. Under the statutory scheme developed by the Legislature the city in which the the court is domiciled is required to provide a suitable courtroom and offices for the city judge and other court personnel. LSA-R.S. 13:1889.

Although the Parish of Rapides contributes to the salaries of both the city judge of the Pineville City Court and his employee, the city court clerk, we are of the opinion that the relationship between the Parish and the Judge (and his clerk) terminates at that point. The City Court and the office of City Judge are created by legislative act based upon authority derived from the state constitution. As such, the city judge is a state officer and the police jury of Rapides Parish or any other executive body at that level is powerless to interfere with or direct the activities of the court.

In the case of State ex rel Bass v. Mayor and Board of Aldermen of City of Oakdale, 204 La. 940, 16 So.2d 527, the city council attempted to eliminate the office, of city marshall (created by the Legislature) by drastically reducing that officer’s salary. The Supreme Court held that when the Legislature has created an office a city council cannot nullify or abolish it by any direct or indirect means.

In cases involving the operations of sheriffs’ departments our courts have held that a police jury or parish has no authority to interfere with the operations of a sheriff’s department, the latter being a constitutionally created office. See Wood v. Maryland Casualty Company, 322 F.Supp. 436 (D.C.La.1971) (Western District of Louisiana), and State ex rel Police Jury of Parish of Vernon v. Davis, 120 La. 862, 45 So. 838 (La.1908).

Following that principle, the logical conclusion was stated in Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La. App. 4th Cir. 1970):

“The court is of the opinion that as a matter of law, the Parish of Jefferson exercises no power or discretion in the functioning of the Jefferson Parish Sheriff’s Office. The Sheriff’s Office is a constitutional office, LSA-Const. Art. 7 § 65. It exists and functions independently of the governing body of the Parish. LSA-Const. Art. 14 § 3(c). Therefore there can be no vicarious liability on the part of the Parish of Jefferson for the acts of the Sheriff of Jefferson or any of his deputies.”

See also the separation of powers doctrine embodied in LSA-Const. 1974 Art. 2, Sec. 1.

Likewise, we are of the opinion that the Parish of Rapides exercises no power or discretion in the functioning of the City Court of Pineville, Louisiana. Thus, we fail to see how any vicarious liability whatsoever exists on behalf of the Parish of Rapides for alleged tortious conduct of an employee of the constitutionally and statutorily created City Court of Pineville. Simply stated, the City Judge is a state officer, and the Clerk is his employee. The Parish of Rap-ides is not an employer or master of the City Court as alleged in the City of Pine-ville’s petition. Ergo the Parish of Rapides is, under no theory, responsible for the actions of the Judge of the City Court of Pineville or those of his employees.

For the above and foregoing reasons the judgment of the district court granting the motion for summary judgment in favor of the Parish of Rapides is affirmed. Costs of this appeal are assessed against the City of Pineville.

AFFIRMED.

      . The question of the City of Pineville’s liability ture of this case is not before us at this time. or responsibility under the current factual pos-


text:
    Margaret TEER, Plaintiff-Appellant, v. CONTINENTAL TRAILWAYS, INC., Defendant-Appellee.
    No. 5771.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.

      Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellant.
    Stafford, Randow, O’Neal & Smith by Hodge O’Neal, III, and Larry A. Stewart, Alexandria, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

Miss Margaret Teer instituted this suit for damages against Continental Trailways, Inc. In her petition, she alleged that the accident, from which she sustained injuries, was due solely to the negligence of defendant

“in putting petitioner off the bus in darkness in an unlighted area on the edge of a heavily traveled U.S. highway, without assisting petitioner in any way, without seeing that she arrived safely at her destination, by driving off and leaving her alone, burdened with her suitcase, bags, and personal belongings, knowing that she had to cross the full width of the highway, that she was 62 years of age, and had poor eyesight.”

The trial court, holding that defendant owed no duty to plaintiff, and that plaintiff was contributorily negligent, rendered judgment in favor of defendant. From such judgment plaintiff perfected this appeal. We affirm.

On January 22, 1973, plaintiff, Miss Margaret Teer, a sixty-two year old retired college teacher, sought transportation from Baton Rouge to her home in Campti, Louisiana. At the Baton Rouge bus station she was told that a Trailways bus passed through Campti and that she could disembark there. Miss Teer, carrying a suitcase, paper bag, and purse, boarded such a bus driven by Joseph Crooks. She informed the driver that she wished to stop at a service station located on the southwest corner of the intersection of Louisiana Highway 347 and Edinborn Street. (Her home, to which she planned to walk, was fronted by the latter street and was but a few blocks away.) However, the driver inadvertently passed the intersection, and upon being so informed by plaintiff, he stopped at a point near the northeast corner of the said intersection. Before opening the door of the bus from which Miss Teer was to descend, the driver, Crooks, suggested that plaintiff remain in the bus until it stopped a short distance farther up at a well-lighted, well-equipped (public telephones and open places of business) service center, where she could call someone to pick her up. Such suggestion plaintiff opposed, and she freely and voluntarily disembarked from the bus.

Miss Teer, requesting neither aid nor assistance, alighted from the bus on a grassy strip of ground adjacent to the shoulder (eight to ten feet in width), and walked to the rear of the bus toward the intersection. The driver, Crooks, after having looked in his rear view mirror and noticed that plaintiff was off the main traveled portion of the highway, drove the bus away. Some time thereafter, Miss Teer, in the process of traversing the highway, was struck by an automobile owned and driven by J. D. Wag-non.

In contracting to transport passengers for hire, public carriers undertake grave obligations. Although not the insurers of their passengers, public carriers are required to exercise the highest degree of vigilance, care and precaution for the safety of those whom they transport. King v. King, 253 La. 270, 217 So.2d 395 (1968); Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); cases too numerous to cite. However, once a passenger freely disembarks at his chosen destination free from harm, his status as passenger, and the public carrier’s contract to transport for hire, cease. At that point the public carrier only owes such person the duty of ordinary care — it is under no duty to warn the former passenger of “a danger which is apparent, obvious, and known to every person in good mind and sense” (Deason v. Greyhound Corp., 106 So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey, or assist the former passenger in crossing a street or highway. Matte v. Continental Trailways, Inc., 278 So.2d 60 (La., 1973) and cases cited therein; Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4 Cir., 1975); Deason v. Greyhound Corp., supra.

In this case defendant breached no duty that it owed plaintiff. Once plaintiff alighted from the bus, Continental owed her no duty other than that of ordinary care. The situs of the stop was chosen by plaintiff. At the time the bus departed, plaintiff was in no harm or danger. Plaintiff, a well-educated woman, with no glaring physical or mental impediments, never requested aid or assistance and was fully cognizant of the obvious danger, that of traffic, in crossing the highway.

Having reached the above conclusions, it is not necessary for this Court to pass on the plea of contributory negligence or any other defense raised by defendant.

The judgment of the trial court dismissing plaintiff’s suit is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    J. Edward SICK, III, et al. v. BENDIX-UNITED GEOPHYSICAL CORPORATION, formerly known as United Geophysical Corporation, et al.
    No. 11035.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.

      John V. Baus and Timothy T. Roniger, Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for plaintiffs and appellants.
    John F. Pugh, Pugh, Lanier & Pugh, Thi-bodaux, and Charles C. Gremillion, Liskow & Lewis, New Orleans, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for a geophysical trespass. From a judgment sustaining an exception of no cause of action, and overruling an exception of no right of action, the plaintiffs have appealed and the defendants have answered the appeal.

The plaintiff, J. Edward Sick, III, W. S. Mott, Jr., and Wessely Energy Corporation, have sued Bendix-United Geophysical Corporation, formerly known as United Geophysical Corporation, Florida Gas Transmission Company, Florida Gas Company, and Florida Gas Exploration Company. By a supplemental and amended petition plaintiffs have added as defendants, Drillamex, Inc., Barber Oil Company and MAPCO, Inc.

The petition alleges that the plaintiffs, Sick and Mott, are the owners of certain oil and gas mineral leases which were obtained by assignment from David J. Robichaux, and which mineral leases are described in an exhibit attached to the petition. It further alleges that the two assignments by which these plaintiffs obtained their ownership had been filed in the conveyance records of Lafourche Parish; that they are attached to the petition as exhibits; that the mineral leases specifically reserved to the mineral lessee the exclusive right to conduct geophysical operations; and that Sick and Mott had assigned a portion of the ownership by letter agreement to the other plaintiff, Wessely Energy Corporation, and that a copy of the agreement was attached to the petition.

A review of the assignments from Robi-chaux to Sick and Mott shows that they were each executed on March 14, 1972, but not recorded in Lafourche Parish until March 27, 1973. The letter agreement between Sick, Mott and Wessely is dated March 15, 1972, and was accepted on March 16, 1972.

The petition next alleges that on or about June 19, 1972, the defendants entered upon the lands covered by the leases and without the permission of plaintiffs conducted geophysical operations of their own. Plaintiffs asked for damages for this trespass.

The defendants filed a preemptory exception of no right and no cause of action and argued that since the plaintiffs were not the record owners of the mineral leases at the time of the geophysical activity by the defendants, they have not stated a cause of action nor do they have a right of action.

Defendants argue in this court, and we assume the same in the Trial Court, in support of their exception of no cause of action that mineral leases are incorporeal immovables subject to the law of registry, citing LSA-R.S. 31:1s and LSA-C.C.P. Art. 3664. As a result thereof, they further argue that unrecorded mineral lessees have no cause of action for a geophysical trespass because interests in immovable property are completely null and void as to third persons prior to their recordation. And in support they cite LSA-C.C. Art. 2266, LSA-R.S. 9:2721 , McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392 (1958), Tinsley v. Seismic Explorations, Inc., 239 La. 23, 117 So.2d 897 (1960), Andrepont v. Acadia Drilling Company, 208 So.2d 737 (La.App. 3rd Cir. 1968), reversed on other grounds, 255 La. 347, 231 So.2d 347 (1969), Hargroder v. Columbia Gulf Transmission Company, 278 So.2d 864 (La.App. 3rd Cir. 1973), reversed on other grounds, 290 So.2d 874 (La.1974), and Loeb v. Badalamenti, 192 So.2d 246 (La.App. 4th Cir. 1966), writ refused, 250 La. 24, 193 So.2d 530 (1967).

Plaintiffs contend they have a cause of action for a geophysical trespass under LSA-C.C. Arts. 2315 and 2703 irrespective of the fact that the trespass was committed prior to the recordation of the assignments of the leases. In essence, plaintiffs argue that a trespasser is not a “third party” who is protected by the recordation doctrine, citing Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App. 1st Cir. 1971).

To counter this argument, defendants further argue that Bergeron dealt with a personal right on the part of a surface lessee and not capable of being protected through recordation, whereas in the instant case we are concerned with a real right. They further cite Tinsley for the proposition that there must be a timely recordation before a claim for geophysical trespass can be entertained.

The distinction between the exception of no right of action and that of no cause of action were succinctly explained in Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954) as follows:

“Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain his suit, i. e., his capacity to sue or his interest in the subject matter of the proceeding, whereas an exception of no cause of action addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. * * * The latter is triable entirely on the face of the papers, while evidence may be received under an exception of no right of action for the purpose of showing that plaintiff does not possess the right he claims or that the right does not exist. * * *.”

As we view the problem presented, the crucial question to a resolution of the issue is whether a trespasser is a third party privileged to the recordation doctrine?

Significantly enough, the Legislature has spoken on who are third persons or third parties by enacting LSA-R.S. 9:2722 which provides:

“Third persons or third parties so protected by and entitled to rely upon the registry laws of Louisiana now in force and effect and as set forth in this Chapter are hereby redefined to be and to include any third person or third party dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease and all other third persons or third parties acquiring any real or personal right, privilege or permit relating to or affecting immovable property." (emphasis supplied)

When the Legislature in redefining who a third person or third party was by use of the language “dealing with any such immovable or immovable property or acquiring a real or personal right therein as purchaser, mortgagee, grantee or vendee of servitude or royalty rights, or as lessee in any surface lease or leases or as lessee in any oil, gas or mineral lease,” makes it clearly apparent what it intended. Very simply, it is speaking of a purchaser, mortgagee, grantee, vendee or lessee. The last clause in the statute speaks of acquiring a real or personal right, privilege or permit. Therefore, it seems quite obvious merely from a casual reading of this statute that the Legislature never intended to include as a third person or third party a bad faith trespasser, that is a trespasser who does not act under any color of authority or permission granted by any record owner.

As to the argument by defendants that the Tinsley case is controlling, we do not agree. Though it is true that the Tinsley case was also a geophysical trespass case, it was not tried on an exception of no cause or no right of action, but rather on the merits. As it turned out, the defendant had obtained permission from the landowner-lessor to conduct seismic tests. The landowner-lessor was not joined in the suit. The Trial Court rendered judgment for plaintiff and defendant appealed with the Court of Appeal affirming. Though no mention is made of the recordation by plaintiff of his mineral lease, the Supreme Court does give some indication that prior recordation is necessary, but then reverses the lower court decision for a lack of proof of damages. Considering that defendant had permission from the landowner-lessor, that judgment had been rendered against him and then reversed, we must conclude that any mention of recordation was merely dictum.

After a careful reading and study of both the Hargroder and Andrepont cases, we cannot agree with the position taken by the defendant. Though it is true that the plaintiffs in both cases held unrecorded farm leases and was suing for crop damages, in each case the defendants had permission from the landowners to go upon the property in question. In Andrepont, the defendant held a mineral lease, and in Har-groder, it was a right of way. Factually, the only difference between the two is that in Hargroder the use of the property was limited to the right of way, and the defendant went outside the right of way. Yet, in Hargroder, the Supreme Court does not specifically tackle the problem before this court.

While defendants contend the unrecorded mineral lessee does not have a cause of action for a geophysical trespass, they argue that the only party who could maintain such an action is the record owner. Interestingly it would seem that if the record owner in this case filed suit for the trespass, he would be subject to an exception of no right of action, and it would only be necessary to place the record owner on the witness stand and ask him whether he still owned the mineral lease. It is then conceivable that we could ultimately have a situation where the unrecorded lessee would be out of court on a no cause and the record lessee on a no right, thus the defendant going free.

As we understand and appreciate the application of the public records doctrine, it is intended to protect those third parties by what they find or what they could have found in the public records. That is, one who deals with the record owner is protected vis-a-vis the true owner. However, we do not believe the public records doctrine was ever intended to protect one who did not deal with anybody from the harm that he might have done.

We, of course, agree that as between plaintiffs and defendants, if defendants would have received permission from the record owner of the mineral lease to do seismic work, the plaintiffs would have no cause of action, for their interests are not recorded and the defendants, as third persons or parties would have dealt with the record owner. Therefore, for plaintiffs to properly state a cause of action, plaintiffs must allege that defendants were on the property, not only without plaintiffs’ permission, but also without permission of the record owner. Plaintiffs do not allege this in their petition, and only allege that the defendants did not have their permission, and therefore, they did not state a cause of action. However, under LSA-C.C.P. Art. 934, when a preemptory exception is sustained, and grounds can be removed by amendment, same shall be allowed.

As to the defendants’ answer to the appeal of the overruling by the Trial Judge of the exception of no right of action, we find no error on the part of the Trial Judge. We note that there are several depositions in the record of this case, but we are left with the distinct impression from reading the briefs and after listening to oral argument, that these depositions were never introduced into evidence in support of the no right exception. Therefore, we are left with the conclusion that the Trial Judge made his rulings without the use of these depositions.

In support of their exception of no right of action, defendants cite Union Brokerage & Insurance Agency, Inc. v. Terral Industries, Inc., 308 So.2d 855 (La.App. 2nd Cir. 1975) and Michigan Wisconsin Pipe Line Co. v. Walet, 225 So.2d 76 (La.App. 3rd Cir. 1969). After studying both of these cases, we are convinced that neither is controlling. In Union Brokerage, the plaintiff was attempting to enforce an alleged oral contract made in connection with the sale of immovable property. Plaintiff in Michigan Wisconsin was expropriating a pipe line right of way and unrecorded lessees were some of the defendants.

We feel it goes without saying, that after our discussion above concerning who is a third party or person, that there was no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. It is further ordered that the Trial Court permit appellants a delay of 15 days in which to amend their petition, said respite to commence upon the finality of this decree; thereafter this matter is to proceed in accordance with law and the views herein expressed. The costs of this appeal shall be borne equally by appellants and appellees, all other costs to await further action of the Trial Court.

AMENDED AND REMANDED.

      . LSA-R.S. 31:18 provides:
      “A mineral right is an incorporeal immovable. It is alienable and heritable. The situs of a mineral right is the parish or parishes in which the land burdened is located. All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry.”

      . LSA-C.C.P. Art. 3664 provides:
      “The owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.”

      . LSA-C.C. Art. 2266 provides:
      “All sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording may be made at any time, but shall only affect third persons from the time of the recording.
      “The recording shall have effect from the time when the act is deposited in the proper office, and indorsed by the proper officer.”

      .LSA-R.S. 9:2721 provides:
      “No sale, contract, counter letter, lien, mortgage, judgment, surface lease, oil, gas or mineral lease or other instrument of writing relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated; and neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third parties.”

      . LSA-C.C. Art. 2315 in part provides:
      “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . LSA-C.C. Art. 2703 provides:
      “The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”


text:
    QUICKICK, INC. v. QUICKICK INTERNATIONAL et al.
    No. 11047.
    Court of Appeal, of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Martin C. Schroeder, Jr., Boatner R. Howell, Jr., Baton Rouge, for plaintiff-appel-lee.
    William N. Faller, Baton Rouge, William R. Eckhardt, Houston, Tex., David D. Moss, Roger Fritchie, Baton Rouge, for defendants-appellants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment fixing liability of a surety, Bud Adams Enterprises, Inc., formerly Ada Oil Company, said judgment decreeing that Bud Adams Enterprises, Inc., is liable in solido with Quick-ick International as the result of Ada Oil Company being surety on the suspensive appeal bond in an appeal from a money judgment against K. S. Adams, Jr. and Quickick International, signed on September 28, 1973 in the amount of $263,729.60, plus interest, costs, and attorney fees.

The original action was a suit to collect a debt owed by Quickick International to Quickick, Inc. for the purchase of the product “Quickick”. Quickick, Inc. was plaintiff and Quickick International, hereinafter sometimes referred to as International; K. S. Adams, Jr., hereinafter sometimes referred to as Adams; and Ada Oil Company, hereinafter sometimes referred to as Ada; were defendants. Plaintiffs sought to impose liability on Adams and Ada on the theory that they were the alter ego of International, and, therefore, liable for its debts. The judgment of the Trial Court entered September 28, 1973 held International liable on the debt and also held Adams liable in solido on the basis that International was the alter ego of Adams. The action against Ada was dismissed.

International and Adams appealed to this Court , wherein the Trial Court judgment was affirmed as to International, but reversed as to Adams, thus dismissing him. This Court held that Adams was not the alter ego of International and, therefore not responsible for the debt of International.

It was in connection with the first appeal to this Court that the instrument headed “Suspensive Appeal Bond” was prepared, signed, and filed. Said bond provides in pertinent part, as follows:

“NOW THEREFORE we the undersigned K. S. Adams, Jr., as Principal and Ada Oil Company, a Delaware Corporation, authorized to do and doing business in the State of Louisiana, through L. W. Fisher, Senior Vice President, as Surety do by these presents promise and agree that Quickick International and K. S. Adams, Jr. appellants, shall prosecute the said appeal and that they shall satisfy whatever judgment may be rendered against them, or that the same shall be satisfied by the proceeds of the sale of their estate, real or personal, if they be cast in their appeal and that otherwise the undersigned, Ada Oil Company as Surety, will be liable in its place." (emphasis added)

The foregoing bond was signed by Adams, as principal and by L. W. Fisher for Ada as surety. International did not sign the bond nor did it sign an affidavit as a principal as to the worth of the surety. It is also important to note at this point that the surety, Ada, was not at any time domiciled in Louisiana.

Briefly, it is the position of Quickick, Inc. that Ada became surety on the suspensive appeal bond for International. On the other hand, it is defendants-appellants’ position that Adams was the only principal for which Ada was surety and that since the appeal to this Court dismissed the suit against him, Ada has no further obligation on its bond.

Defendants-appellants’ reasons for the appeal from the judgment of the Trial Court holding Bud Adams Enterprises, Inc., formerly Ada, liable as surety for International are threefold. Appellants’ first argument is that the surety has assumed no liability of International based on a reading of the language of the bond. Appellants also argue that International’s filing of a devolutive appeal bond, following rendition of judgment by this Court on the appeal of the original money judgment, had the effect of making International’s appeal devol-utive. Secondly, appellants argue that the Trial Court erroneously excluded parol evidence, namely testimony, in order to interpret the meaning of the suspensive appeal bond. Thirdly, defendants-appellants urge that Bud Adams Enterprises, Inc. should be relieved of liability as surety on the bond in order to prevent unjust enrichment.

We will answer the three above contentions in reverse order.

The argument of unjust enrichment is made because International is a defunct corporation, with no assets, and unable to satisfy a judgment. Appellants argue that to hold Bud Adams Enterprises, Inc. liable for the debts of a defunct corporation leads to unjust enrichment. We do not agree with this contention but find on the contrary that the judgment creditors would not be unjustly enriched but would be receiving that to which entitled by reason of the original judgment.

On the question of the admissibility of parol evidence, we agree with the Trial Court’s refusal to admit parol evidence for the reason that parol evidence is admissible only to prove an independent, collateral fact about which the written contract was silent. Parol evidence is not admissible to alter, vary or contradict the written contract. The question before this Court is an interpretation of the language of the suspensive appeal bond itself, and we see no independent or collateral fact which needs clarification.

Finally, we come to the interpretation of the language of the contract itself and also the question of the effect of International filing a devolutive appeal bond after the case had been argued and judgment rendered on the appeal of the original money judgment to this Court.

We agree with appellants that nowhere in the bond is International named as a principal. We also agree with appellants’ statement of the law that suretyship is an assessory promise by which a person binds himself along with another already bound. While International has not promised or agreed to undertake and/or prosecute the appeal by the language of the bond, the fact remains that International is bound on the obligation in question by virtue of the judgment already rendered. It is well settled, and appellant in brief admits, that a principal on a judicial bond need not sign the bond. Therefore, since International is already bound on the money judgment, the requirement that suretyship be an assessory promise by which a person binds himself along with another already bound is met.

A paraphrase of the pertinent language in the bond in question reveals the following:

Ada Oil Company, ... as surety promise and agree that Quick-ick International and K. S. Adams, Jr. appellants, shall prosecute the said appeal and that they (Quickick International and Adams) shall satisfy whatever judgment may be rendered against them, (Quickick International and Adams) or that the same shall be satisfied by the proceeds of the sale of their (Quickick International and Adams) estate, . . . , if they (Quickick International and Adams) be cast in their (Quickick International and Adams) appeal and that otherwise the undersigned, Ada Oil Company as Surety, will be liable in its place.

In spite of the fact that Quickick International is not named as a principal, it is named as an appellant and there is no way around the language that if appellants be cast in their appeal that Ada, as surety, will be liable.

Following oral argument and rendition of judgment on the first appeal herein, International filed a devolutive appeal bond and Adams filed a second suspensive appeal bond, the surety on both of these being by an insurance company authorized to do business in Louisiana. Appellants’ alleged purpose for the new bonds being the fact that Ada was not domiciled in Louisiana as is required of a personal surety. We find that this new bond in behalf of International has no effect insofar as releasing Ada as surety for the following reasons. Though by LSA-C.C.P. Art. 5124 the party furnishing a bond may correct any defects therein by furnishing a new or supplemental bond at any time if no rule to test the original bond has been filed, we do not see that this can be applicable once the Court has rendered judgment. Furthermore the third and final paragraph of LSA-C.C.P. Art. 5124 provides as follows:

“The furnishing of a supplemental bond, or the furnishing of a new bond by a different surety, does not discharge or release the surety on the original bond; and the sureties on both are liable in solido to the extent of their respective obligations thereon and may be joined in an action on the bond.”

By the above quoted language, there is no doubt that Ada remained bound regardless of the fact that a devolutive appeal bond was later filed by International. Finally, though it seems elementary, we point out that though Ada was not a proper surety under our law because not domiciled in Louisiana, nevertheless this is an objection which the appellee would have to raise. It can not be raised by Ada as a means of avoiding its obligation.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendants-appellants.

AFFIRMED.

      . Quickick, Inc. v. Quickick International, 304 So.2d 402 (La.App. 1st Cir. 1974), writ refused, 305 So.2d 123 (La.1974).


text:
    AVCO FINANCIAL SERVICES, INC. v. Willie CHAPMAN.
    No. 49142.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Davey L. Tucker, Jackson, for appellant.
    D. M. Anderson, Newton, for appellee.
    Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and KERMIT R. COFER, Commissioner.
   Appeal from Chancery Court, Newton County; Osborn Guyton Idom, Chancellor.

AFFIRMED.


text:
    Linda G. MOUDY v. STATE of Mississippi.
    No. 49425.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    Brown & Stanfield, Percy Stanfield, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., SMITH and WALKER, JJ., and CLARENCE E. MORGAN, Jr., Commissioner.
   Appeal from Circuit Court, Hinds County; Charles Barber, Special Judge, and Leon F. Hendrick, Judge.

AFFIRMED.