author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Jimmie L. TAYLOR and Gary A. Desdunes.
    No. 61949.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      L. Howard McCurdy, Robert F. Barnard, New Orleans, Orleans Indigent Defender Program, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Jimmie L. Taylor and Gary A. Desdunes were charged in the same information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendants were found guilty as charged. After conviction, but prior to sentencing, the district attorney filed an information accusing Taylor of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found Taylor to be an habitual offender and sentenced him to serve fifty years at hard labor. Desdunes was sentenced to serve forty years at hard labor. On appeal, defendants rely on six assignments of error for reversal of their convictions and sentences.

ASSIGNMENT OF ERROR NO. 3

Defendants contend the trial judge erred in refusing their request at trial for production of the police report.

Police reports are considered confidential, and generally the state may not be compelled to produce them for inspection. However, we have held that a defendant may obtain a copy of a police report if it is established that there is an inconsistency between the officer’s testimony at trial and his report, or when the officer’s testimony at trial is from his report rather than his memory. State v. Banks, 341 So.2d 394 (La.1976); State v. Foret, 315 So.2d 278 (La.1975).

In the instant case, defendants do not contend that there was any inconsistent testimony given by the police officer nor does the record so reflect. Moreover, it is clear from the record that the officer’s testimony was a product of present memory refreshed rather than past recollection recorded. The officer did not refer to the report while testifying on the stand. Furthermore, he repeatedly stated, upon being questioned first by defense counsel and then by the trial judge, that he was testifying from his independent recollection, refreshed by reading over his report prior to trial. Hence, the trial judge did not err in denying defendants’ request for production of the police report. State v. Whitehurst, 319 So.2d 907 (La.1975); State v. Lane, 302 So.2d 880 (La.1974).

Defendants cite State v. Tharp, 284 So.2d 536 (La.1973) (on rehearing), as authority for the contrary conclusion. However, that decision is distinguishable, as the following statement from that opinion indicates:

We reject the State’s argument that this witness was testifying from memory refreshed outside the courtroom prior to taking the stand. The witness stated that his testimony came from his report which he had with him on the stand.

See also State v. Whitehurst, supra; State v. Lane, supra.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendants contend the trial judge erred in denying an oral motion to suppress made at the conclusion of the state’s case. They argue that the officers had no reasonable cause to stop and frisk defendants and, in any event, had no authority to seize tangible evidence including $284 in paper money, coins, a personal check and a wristwatch from defendants’ persons. Defendants admit that no motion to suppress was filed prior to trial but claim that they only became aware of the grounds for such a motion during trial.

In the instant case, the testimony at trial reveals that, while two police officers were stopped at the intersection of Decatur and Conti Streets in New Orleans, they observed defendants running toward them at about 1:15 a. m. After spotting the police officers, defendants abruptly ceased running and commenced walking in the same direction. After fifteen yards from the patrol car, Taylor fell behind Desdunes, out of view of the officers. At the intersection, Taylor reappeared alongside of Desdunes, whereupon the officers stopped and detained defendants.

While conducting a frisk of defendants, one of the officers noticed bulges in Taylor’s pockets. Upon being questioned as to the contents of his pockets, Taylor voluntarily began to take money from his pockets and placed it upon the patrol car, stating that it had been won in a dice game. At this point, a cab driver who had stopped behind the patrol car beckoned to the officer, who directed Taylor to return the money to his pockets, and get into the patrol car. The officer then learned from the cab driver of an armed robbery of a bar two and a half blocks away, reported only minutes before. Immediately thereafter, the officers continued a search of the area and discovered a pistol some ten feet away from the patrol car, along the route defendants had been traveling. Returning to the patrol car, the officers received from headquarters confirmation of the cab driver’s tip, placed defendants under arrest, searched their persons and discovered the evidence at issue.

A motion to suppress must be filed no later than three judicial days before trial on the merits begins, unless opportunity therefor did not exist or defendant was not aware of the grounds for the motion. In such an event, the court in its discretion may permit the filing of a motion to suppress at any time before or during trial. La.Code Crim.P. art. 703. The purpose of this requirement is to prevent interruption of trials, avoid the effort and expense of useless trials, and to protect juries from exposure to inadmissible evidence. State v. Wallace, 254 La. 477, 224 So.2d 461 (1969); State v. Rasheed, 248 La. 309, 178 So.2d 261 (1965).

First, it is obvious that defendants were well aware of the grounds for the motion to suppress prior to trial. They knew of the facts surrounding their arrests and seizure of the evidence. Moreover, the arrests and seizure of evidence took place on November 12, 1974. Defendants had the benefit of counsel from November 1974 until trial on June 10,1975. Other pretrial motions were filed by defendants.

In addition, the state in its opening statement fully described the events surrounding defendants’ arrests, including the evidence seized from them. During trial, witnesses for the state testified and were cross-examined extensively about the evidence which they identified. Immediately prior to the close of the state’s evidence, the state offered the items previously identified in evidence. It was at this point that defendants for the first time made an oral motion to suppress the evidence. Even if the evidence had been inadmissible, the damage would have already been done at this point in the proceedings.

Under the circumstances here presented, we do not consider that the trial judge abused his discretion in denying defendants’ motion to suppress. When a motion to suppress is untimely, objection to the admissibility of evidence based on an infirmity in a search and seizure is waived. La.Code Crim.P. art. 703, Official Revision Comment (d); State v. Wallace, supra.

In any event, we find that the seizure of the evidence from defendants was not constitutionally infirm.

The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Dixon, supra; State v. Weathers, 320 So.2d 892 (La.1975).

In the instant case, it is clear from the record that the police officers had reasonable cause to detain and question defendants. The suspicious conduct took place late at night in an area where robberies, rapes and purse-snatchings are common. In addition, defendants’ conduct was consistent with that of one who has just committed a crime. The officers were therefore entitled to detain and question defendants. State v. Williams, 304 So.2d 311 (La. 1974); State v. Cook, supra.

Moreover, pursuant to the statutory authority of La.Code Crim.P. art. 215.1(B), the officers were equally justified in conducting a limited weapons pat-down. Terry v. Ohio, supra; State v. Cole, 337 So.2d 1067 (La. 1976); State v. Dixon, supra. During the course of this pat-down, Taylor voluntarily began to remove money from his pockets in response to the officer’s query as to the contents of his bulging pockets. The officer did not confiscate the money at this point; rather, he instructed Taylor to return it to his pockets.

Thereafter, upon finding a weapon in the immediate vicinity and receiving confirmation of the cab driver’s tip, the original reasonable cause to stop and frisk defendants ripened into probable cause for their arrest. At this juncture, the officers did arrest defendants, conducted a full search of their persons, and seized the evidence as an incident to the lawful arrests. Accordingly, we find that the trial judge did not err in denying defendants’ motion to suppress.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendants contend the trial judge erred in charging the jury that the law presumes that the person in the unexplained possession of property recently stolen is the thief. He argues that this instruction unconstitutionally relieved the state of its burden of proving beyond a reasonable doubt each element of the crime charged.

Included in the trial judge’s charge to the jury was an instruction that there is a presumption “that the person in the unexplained possession of property recently stolen is the thief.” Defendants’ objection to the instruction on the ground that it violated their constitutional rights was overruled.

La.R.S. 15:432 provides that there is a legal presumption “that the person in the unexplained possession of property recently stolen is the thief.” The constitutionality of this statutory presumption was upheld in State v. Womack, 283 So.2d 708 (La.1973). In State v. Searle, 339 So.2d 1194 (La.1976) (on rehearing), we noted that “in order to sustain the use of a presumption to prove the crime charged or an essential element thereof it is incumbent upon the prosecution to demonstrate that the presumed fact must beyond a reasonable doubt flow from the proven fact on < which it is made to depend.” However, in Searle, we only held that the judicial extension of the statutory presumption to other crimes was “unconstitutional, unwise and must be overruled.” We did not find that the statutory presumption itself was unconstitutional on its face. See also State v. Jamerson, 341 So.2d 1118 (La.1977); State v. Montoya, 340 So.2d 557 (La.1976).

In State v. Coleman, 358 So.2d 289 (La.1978), we affirmed that there was no constitutional defect in the statutory presumption if properly used, i. e., if its effect, in the context of the entire charge, is only to create an inference that the person in possession of recently misappropriated property was the misappropriator. The presumption cannot be used in such a manner as to lessen the state’s constitutional and statutory burden of proving beyond a reasonable doubt the accused’s guilt of every element of the crime charged; nor in such a manner that the defendant is penalized for his failure personally to explain his possession of the item, in derogation of his constitutional right to remain silent.

In the instant case, the trial judge instructed the jury that the person in the unexplained possession of property recently stolen is presumed to be the thief. See State v. Montoya, supra. Theft is but one of the elements of armed robbery, the crime charged. The trial judge clearly delineated the other elements of the crime charged and made it clear to the jury that the state bore the burden, of proving beyond a reasonable doubt each and every element of the crime charged. In addition, the trial judge adequately informed the jury of defendants’ constitutional right to remain silent, charging them that such silence could in no way be used to infer the guilt of defendants.

Moreover, we find from the evidence that the presumed fact that the person in the unexplained possession of property recently stolen is the thief flows beyond a reasonable doubt from the proven facts on which it is made to depend. Defendants were arrested and the property seized from their possession within minutes of the perpetration of the armed robbery two and a half blocks away. Also, defendants were positively identified as the culprits by eyewitnesses and the victim of the crime. Hence, the trial judge did not err in instructing the jury on the statutory presumption here involved.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendants contend the trial judge erred in denying their motions for mistrial based on three allegedly objectionable remarks and their objection to a fourth remark made during trial. They argue that the remarks referred to other crimes which were not admissible in evidence. They also argue that no prior notice was given by the state as required by State v. Prieur, 277 So.2d 126 (La.1973).

The four remarks of which defendants complain are (1) the state’s reference in its opening statement to the amount actually stolen as more than the amount alleged in the bill of information; (2) the arresting officer’s testimony in which he used the plural “victims” where the information named only one victim; (3) a victim’s testimony describing another victim’s reaction to being robbed; and (4) the bartender’s unresponsive testimony that he had been robbed four times previously.

La.R.S. 15:447 provides:

Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.

' La.R.S. 15:448 provides:

To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

The record reveals that the other crime evidence contained in the first three remarks was inseparably intertwined with the armed robbery in time and place. As such, these other crimes were an immediate concomitant of the armed robbery and formed in conjunction with it one continuous transaction. Therefore, evidence of the other crimes was admissible as part of the res gestae. State v. Gass, 356 So.2d 936 (La.1977); State v. Flowers, 337 So.2d 469 (La.1976); State v. McCoy, 337 So.2d 192 (La.1976); State v. Curry, 325 So.2d 598 (La.1976); State v. Robinson, 302 So.2d 270 (La.1974); State v. Matthews, 292 So.2d 226 (La.1974). Moreover, no notice is required as to evidence of offenses which are part of the res gestae. State v. Prieur, supra. Hence, the trial judge correctly denied defendants’ motions for mistrial resulting from the three remarks.

The fourth remark consisted of the bartender’s unresponsive reference during cross-examination to four previous armed robberies. On defendants’ objection, the trial judge admonished the jury to disregard the remark.

First, defendants were in no way connected with the reference to the prior armed robberies. Secondly, we do not find, nor do defendants claim, that the allegedly impermissible remark was deliberately obtained by design of the prosecution to prejudice the rights of defendants. The witness’ answer was unresponsive to defendants’ question during cross-examination. Moreover, the jury was immediately admonished to disregard the remark. Under the circumstances, we do not consider that this isolated reference to other armed robberies in no way connected to defendants by this witness during cross-examination was of any consequence. The remark created no prejudice in the mind of the jury. Hence, defendants have no cause to complain. See State v. Fowlkes, 352 So.2d 208 (La.1977).

Assignment of Error No. 6 is without merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

In this prosecution for armed robbery the jury was instructed that there is a presumption that the person in the unexplained possession of property recently stolen is the thief. To give this instruction in the literal words of the statute did not merely inform the jury that it may infer from such circumstances that defendants committed a theft. Considering the context and the language of the instructions, in my opinion, any reasonable juror would have understood that the instruction authorized him to presume that the defendants, who were found in the unexplained possession of money from a recent armed robbery, were guilty of armed robbery. This type of presumption, which as a practical matter relieves the state of its constitutional obligation to prove every essential element and fact necessary to convict the defendant of the crime charged, contradicts the guarantee of due process of law and the privilege against self-incrimination. State v. Montoya, 340 So.2d 557 (La.1976); State v. Searle, 339 So.2d 1194 (La.1976).

      . Defendants have neither briefed nor argued Assignments of Error Nos. 1 and 2. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Succession of Alvin P. LICHTENTAG. Interdiction of Mrs. Nolia E. Langenbecker, widow of Alvin P. Lichtentag.
    No. 62002.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Barry F. Viosca, New Orleans, for plaintiff-applicant, Robert Alexander Katz.
    James S. Quinlivan, Jr., Jefferson, Gerard R. Kehoe, River Ridge, for Mrs. Edwin Du-puy, Curatrix of the Interdict.
   MARCUS, Justice.

Alvin P. Lichtentag died testate on December 14, 1975, leaving neither descendants nor ascendants and was survived by his wife, Nolia E. Langenbecker. Prior to marriage, decedent and his wife entered into a marriage contract (duly recorded) in which they agreed that there would be no community of acquets and gains existing between them. Succession proceedings were opened in the district court. Decedent’s olographic will dated August 1,1968, and codicils dated November 9, 1968, and April 6, 1975, were duly probated, and Robert A. Katz was confirmed as testamentary executor. According to sworn descriptive list filed in succession proceedings, the net value of decedent’s estate is approximately $1,400,000.

Under the terms of his testament, decedent left his wife the usufruct of the family home for the remainder of her life, or until remarriage, or failure to occupy the property as her home. In addition, decedent left his wife all of the contents, appurtenances, and personal property located in the home, together with his automobile and jewelry. The balance of his estate was placed in a usufructuary trust and the usufruct of the income of the trust was bequeathed to his wife. The testamentary executor, Katz, was named trustee and directed to distribute funds out of the usufructuary trust account to Mrs. Lichtentag in a sum not to exceed $1,300 per month, unless an emergency arises or as the trustee in his discretion deems necessary.

Mrs. Lichtentag filed a petition in the succession proceedings alleging that her husband died “rich” and that she, as surviving spouse, was entitled to the marital portion authorized by La. Civil Code art. 2382. As decedent left no children, Mrs. Lichten-tag contended that she was entitled to a fourth of the succession in full property. Subsequent to the filing of this petition, Mrs. Lichtentag was interdicted and her sister, Mrs. Edwina Dupuy, was named cu-ratrix. On motion of Mrs. Dupuy, she was substituted as party plaintiff in Mrs. Licht-entag’s suit. By supplemental and amended petition, the curatrix reiterated the original demand for the marital portion and also alleged that Mrs. Lichtentag was left in necessitous circumstances (an inventory of Mrs. Lichtentag’s estate revealed that she owned property valued at approximately $40,000 at the time of her interdiction).

Meanwhile, in the interdiction proceedings, the curatrix filed a petition for authority to renounce the succession of decedent, reserving all rights to the marital portion under article 2382 of the civil code. This proceeding was conducted contradictorily with a special curator appointed for the interdict. The trial court granted the relief sought by the curatrix. Pursuant thereto, the curatrix made a formal renunciation of the succession in which she specifically reserved a right to claim the marital portion. The special curator appealed.

Thereafter, in the succession proceedings, the testamentary executor filed a petition for declaratory judgment to determine the effect of the wife’s renunciation and reservation of the right to claim the marital portion. The curatrix filed an answer and reconventional demand contending that the renunciation was valid and that the interdict was entitled to the marital portion without the value of the renounced legacy or the value of the property owned by the wife at the time of the husband’s death being included in or reducing the marital portion. The trial court found that the renunciation filed on behalf of the surviving spouse was a valid renunciation of the legacy and that this renunciation was not a renunciation of her right, if any, to the marital portion. In addition, the court held that the marital portion was reduced by the amount of separate property owned by the wife as of the date of her husband’s death, but not reduced by the amount of the legacy that was renounced. The testamentary executor appealed.

The appeals taken by the special curator and testamentary executor were consolidated in the court of appeal. Since the cura-trix did not appeal from the declaratory judgment nor answer the appeal taken by the executor, the issue of the reduction of the marital portion by the amount of the surviving spouse’s separate property, decided in the executor’s favor in the trial court, was not before the court of appeal.

The court of appeal first concluded that the renunciation of the legacy, with a reservation of the right to claim the marital portion, was not a conditional renunciation or partial acceptance of the decedent’s succession in violation of La. Civil Code arts. 986 and 1016. The appellate court agreed with the trial court that the marital portion was not an inheritance. Thus, the court reasoned that the marital portion is not a legacy which must be accepted or renounced with the succession. The court further found that the language of article 2382, providing that the survivor is bound to include in the marital portion what has been left to him as a legacy by the husband or wife who died first, does not apply to the situation where the legacy is renounced because, under La. Civil Code art. 946, a legatee who renounces is considered as never having received the legacy. On the executor’s application, we granted a writ to review the correctness of this decision.

Two issues are presented for our resolution: (1) whether a surviving spouse can renounce the legacy of the decedent spouse and retain the right to the marital portion under article 2382 of the civil code; and (2) if so, whether the value of the renounced legacy must be included in determining the value of the marital portion.

We first address the issue as to whether the surviving spouse can renounce the legacy and still retain the right to claim the marital portion.

The position of an article in the civil code is an important consideration in its interpretation and application. Reymond v. State, Dept. of Highways, 255 La. 425, 231 So.2d 375 (1970). Article 2382, the codal source of the surviving spouse’s right to claim the marital portion, is located in the civil code in Title VI of Book III under the heading, “Of the Marriage Contract, and of the Respective Rights of the Parties in Relation to their Property.” Title I of Book III is that section of our code which relates to successions: testamentary, legal, and irregular. We consider that the placement of article 2382 in the section of our code dealing with the marital relationship to be persuasive evidence of the fact that the redactors of the code did not consider the marital portion as an inheritance de-volving upon the surviving spouse. Our jurisprudence reinforces this view.

The right to claim the marital portion derives from the mutual marital obligations enunciated in La. Civil Code arts. 119 and 120, and particularly those of fidelity, support, and assistance. Malore v. Cannon, 215 La. 939, 41 So.2d 837 (1949). Our courts have referred to the marital portion as a bounty bestowed by law and as one of the civil effects flowing from the marriage. Succession of Justus, 44 La.Ann. 721, 11 So. 95 (1892); Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891). In Succession of Justus, supra, this court discussed the nature of the surviving spouse’s right to claim the marital portion:

The right conferred by the article [2382] is in nature of a charity or bounty in favor of the surviving consort left in penurious circumstances . . . . The fourth is given in honor of the past marriage, that the survivor be retained in the previous accustomed rank and condition. It is a gift. It is not a donation by the deceased but one by the sovereign, acting in the place of the unwilling, hindered, or ignorant defunct spouse.

44 La.Ann. at 724, 11 So. at 96 (emphasis added). It is thus apparent that the right to claim the marital portion carries out the equitable intention of our law to provide a measure of financial security for the surviving spouse left in “necessitous circumstances” at the death of the “rich” deceased spouse. See Dupuy v. Dupuy, 52 La.Ann. 869, 27 So. 287 (1899) (on rehearing).

The effect of article 2382 is to provide, in certain circumstances, for the acquisition of property out of the succession of the deceased spouse. We note that our code provides that the ownership of things or property may only be acquired “by inheritance either legal or testamentary, by the effect of obligations, and by the operation of law.” La. Civil Code art. 870. It is our opinion that the marital portion is a benefit conferred upon the surviving spouse by operation of law, acting in place of the deceased spouse. See Succession of Kunemann, 115 La. 604, 39 So. 702 (1905). The surviving spouse does not acquire the mari tal portion by inheritance either legal or testamentary. We agree with the court of appeal that language used in Succession of Piffet, 39 La.Ann. 556, 2 So. 210 (1887) denoting the marital portion as an inheritance, misstated the nature of the right.

In sum, the marital portion is not an inheritance which must be accepted or renounced with the succession. Hence, articles 986 and 1016, prohibiting conditional renunciation or partial acceptance of successions, have no application here. Accordingly, we conclude that Mrs. Lichtentag can renounce her legacy and still claim her right, if any, to the marital portion.

We must next determine whether the value of the renounced legacy must be included in the marital portion claimed by the surviving spouse.

Article 2382 provides that the surviving spouse who claims the marital portion “is bound to include in this portion what has been left to him as a legacy by the husband or wife, who died first.” The jurisprudence interpreting this article has held that the surviving spouse who accepts a legacy must include the value of that legacy in the determination of the value of the marital portion. Succession of Piffet, supra; Melancon’s Widow v. His Executor, 6 La. 105 (1833). However, the issue as to whether the value of a renounced legacy must be included in the marital portion is res novo in Louisiana.

In Succession of Guillon, 150 La. 587, 91 So. 53 (1922) (on rehearing), this court held that the language of article 2382 is plain and free from ambiguity, and cannot be disregarded under the pretext of pursuing its spirit, citing La. Civil Code- art. 13. We also note that the words of a code article are to be understood in their most usual signification and terms of art or technical terms and phrases are to be interpreted according to their received meaning and acceptation with the learned in the art, trade, or profession to which they refer. La. Civil Code arts. 14 and 15.

Applying these rules of interpretation to the language of article 2382, we consider that the word “legacy” as used in the article connotes a direct disposition which the testator makes for the benefit of one or more persons, either of the whole or a portion of his estate, or of some particular thing. See La. Civil Code arts. 1605, 1606, 1612 and 1625. To include within the meaning the word “legacy” an acceptance of such legacy would be to disregard the letter of the law as it appears before us. If the redactors of the code had intended that the legacy must be accepted by the surviving spouse before its value was to be included in the marital portion, we believe they would have used express language to that effect.

We are strengthened in our interpretation of the word “legacy” as it appears in article 2382 by the policy of the law that underlies the marital portion doctrine. As stated earlier in this opinion, the marital portion doctrine derives from the mutual marital obligations of fidelity, support and assistance. Malone v. Cannon, supra. It is apparent that whatever legacy a deceased spouse leaves the surviving spouse is, whether eventually accepted or renounced, at least a partial compliance with the obligation to provide created by the pre-exist-ing marital relationship. Article 2382, on the other hand, contemplates that the decedent spouse has to some degree left unfulfilled his marital obligation to provide. In the instant case, the terms of the testament indicate that decedent intended to provide some financial support for his surviving wife. Hence, to hold that the value of the legacy renounced by Mrs. Lichtentag is not to be included in the marital portion claimed by her would be to disregard the spirit as well as the letter of article 2382.

In sum, we consider that, even though a surviving spouse renounces a legacy left to her by the decedent spouse, the value of that renounced legacy must be included in the calculation of the marital portion. Accordingly, the court of appeal erred in holding that the language of article 2382 providing for a reduction from the marital portion of the amount of any legacy left to the surviving spouse has no application when the legacy is renounced.

La. Civil Code art. 1031 provides in pertinent part:

So long as the prescription of the right of accepting is not acquired against the heirs who have renounced, they have the faculty still to accept the succession, if it has not been accepted by other heirs, without prejudice, however, to rights which may have been acquired by third persons upon the property of the succession, either by prescription, or by lawful acts done with the administrator or curator of the vacant estate.

Our review of the record indicates that apparently there has been no acceptance of this succession by the other legatees under the testament. In such an event and since prescription has not run on Mrs. Lichten-tag’s right to accept her legacy, she would still have the faculty to withdraw her renunciation and accept the legacy. La. Civil Code arts. 1030, 1031.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it held that the value of the renounced legacy is not included in the marital portion claimed by Mrs. Lichtentag. The judgment of the court of appeal is affirmed insofar as it held that Mrs. Lichtentag could renounce the legacy under the testament and still claim her right, if any, to the marital portion.

      . La. Civil Code art. 2382 provides:
      If either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion; that is, the fourth of the succession in full property, if there be no children, and the same portion, in usufruct only, when there are but three or a smaller number of children; and if there be more than three children, the surviving, whether husband or wife, shall receive only a child’s share in usufruct, and he is bound to include in this portion what has been left to him as a legacy by the husband or wife, who died first.
      Whenever, during the administration of any succession, it appears that the surviving spouse will be entitled to the marital portion above provided for, upon final liquidation of the estate of the deceased, the survivor in necessitous circumstances shall be entitled to demand and receive from the executor or administrator of such succession, a periodical allowance to be fixed by the court wherein the proceedings are pending. Should the marital portion, as finally fixed, not be equal to the allowance as fixed by the court, the surviving spouse shall be charged with the amount of such deficiency.

      . La. Civil Code art. 986 provides:
      He who has the power of accepting the entire succession, cannot divide and only accept a part.
      La. Civil Code art. 1016 provides:
      A succession can neither be accepted nor rejected conditionally.

      . La. Civil Code art. 946 provides:
      Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whether he accepts or rejects it.
      If the heir accept, he is considered as having succeeded to the deceased from the moment of his death; if he rejects it, he is considered as never having received it.

      . 355 So.2d 588 (La.App. 4th Cir. 1978).

      . 357 So.2d 1159 (La. 1978).

      . The marital portion doctrine became a part of the law of Louisiana through article 55 of the Civil Code of 1808, and was derived, in part, from Book 6, Title 13, Law 7 of Las Siete Partidas. See Malone v. Cannon, 215 La. 939, 41 So.2d 837 (1949); Dunbar v. Heirs of Dunbar, 5 La.Ann. 158 (La.1850). Las Siete Partidas specifically states that the surviving wife “inherits” the marital portion. We note that the redactors of our code chose to say the survivor, whether husband or wife, “has a right to take out of the succession” the marital portion. This change of language further negates the implication that the marital portion was intended as an inheritance.

      .La. Civil Code art. 119 provides:
      The husband and wife owe to each other mutually, fidelity, support and assistance.
      La. Civil Code art. 120 provides:
      The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.

      . These code articles provide:

        La. Civil Code art. 1605

      Testamentary dispositions are either universal, under a universal title, or under a particular title.
      Each of these dispositions, whether it be made under the name of institution of heir, or under the name of legacy, shall have its effect, according to the rules hereafter established for universal legacies, for legacies under a universal title, and for particular legacies.

        La. Civil Code art. 1606

      A universal legacy is a testamentary disposition, by which the testator gives to one or several persons the whole of the property which he leaves at his decease.

        La. Civil Code art. 1612

      The legacy, under a universal title, is that by which a testator bequeaths a certain proportion of the effects of which the law permits him to dispose, as a half, a third, or all his immovables, or all his movables, or a fixed proportion of all his immovables or of all his movables.

        La. Civil Code art. 1625

      Every legacy, not included in the definition before given of universal legacies and legacies under a universal title, is a legacy under a particular title.


author: DENNIS, Justice. MARCUS, Justice

text:
    Louis HENSON v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 61846.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Donald S. Zuber, Seale, Smith & Phelps, Baton Rouge, for defendant-applicant.
    David C. Kimmel, Harroun, Kimmel, Ma-tuschka & McGowin, Baton Rouge, for plaintiff-respondent.
   DENNIS, Justice.

This is a patient’s suit against his physician’s insurer to recover for damage sustained as the result of a surgical operation. The defendant’s exception of prescription was sustained by the trial court. The plaintiff appealed and the court of appeal reversed. 354 So.2d 612 (La.App.1st Cir. 1977). We granted writs to review questions raised by the court of appeal opinion about the nature of plaintiff’s cause of action and the applicability of the prescription of ten years. After careful consideration of the record in the case, however, we conclude that the exception of prescription, which was tried on the face of the pleadings, should have been overruled because defendant failed to introduce any evidence in support of it. Accordingly, we affirm for different reasons and do not reach the questions which caused our initial concern with the court of appeal opinion.

The plaintiff’s petition contained the following allegations: Dr. Robert A. Peden performed surgery upon plaintiff on July 5, 1973 to remove polyps from his nasal passages. The surgeon informed him that the numbness and periodic severe pain in the left side of his face after the surgery “was normal and would cease in time.” Despite continued treatment by Dr. Peden the symptoms persisted. Plaintiff was repeatedly informed by both Dr. Peden and “another consultant physician” that the “sensations would abate.” Plaintiff consulted a Dr. Cox in October, 1974 after selecting his name from a list of several physicians supplied by Dr. Peden. Dr. Cox informed plaintiff “that he should wait six or eight months and the condition might improve.”

Plaintiff filed suit on February 19, 1976 against Dr. Peden’s insurer alleging that he had negligently performed the operation stretching a nerve in plaintiff’s face and causing the painful symptoms. In his petition plaintiff averred that Dr. Peden did not inform him of the possible consequences of the operation but warranted that it would produce a satisfactory result without any ill effects. Plaintiff alleged that he would not have consented to the operation had he known it could result in a stretched nerve.

The trial court found that the prescriptive period on the plaintiff’s tort claim commenced running when the plaintiff consulted Dr. Cox in October, 1974. The appellate court affirmed this finding on the basis of an allegation in plaintiff’s petition that Dr. Cox had informed him that his condition “might” improve in six to eight months. The court reasoned that prescription commenced at that time because the plaintiff was put on notice by the information that his condition possibly would not improve.

A party’s pleadings are to be so construed as to do substantial justice. La. C.C.P. art. 865; Haskins v. Clary, 346 So.2d 193 (La. 1977); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975). When it can reasonably do so, a court will maintain a petition against a peremptory exception so as to afford the plaintiff an opportunity to present his evidence. Cf. Haskins v. Clary, supra; Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971); LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727 (1966).

There is a reasonable construction of the plaintiff’s pleadings under which the petition may be maintained by applying the maxim “contra non valentem agere, non currit prescripto.” Orleans Parish School v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Dalton v. Plumbers and Steamfitters Local Union No. 60, 240 La. 246, 122 So.2d 88 (1960); see Comment, The Scope of the Maxim Contra Non Valentem in Louisiana, 12 Tul.L.Rev. 244 (1938). Basically, prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Dean v. Hercules, Incorporated, 328 So.2d 69 (La. 1976); Walter v. Caffall, 192 La. 447, 188 So. 137 (1939); Bewley Furniture Co. v. Maryland Casualty Co., 271 So.2d 346 (La. App.2d Cir. 1972), amended 285 So.2d 216 (La. 1973); see Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952).

The record in the instant case consists merely of pleadings and briefs. No evidence was introduced by the defendant to show that plaintiff was apprised by Dr. Cox of facts which would have entitled him to bring suit. The petition is actually ambiguous as to whether Dr. Cox told him that his condition “might” or “would” improve within six to eight months. Even if the plaintiff was informed that his condition “might” improve within six or eight months, this fact alone would not entitle him to bring suit. There is no indication in the petition that Dr. Cox informed the plaintiff that he had sustained a permanent injury, that a convalescent period longer than six or eight months was abnormal, or that his symptoms pointed to a faulty operation. Nor was there anything in the pleadings to indicate that plaintiff would have learned any additional facts had he consulted other physicians. Under these circumstances, it is reasonable to infer from the petition that the plaintiff did not have knowledge of the existence of facts that would entitle him to bring suit until eight months elapsed without abatement of the symptoms following his visit to Dr. Cox. Under this construction of the petition, the prescriptive period would not have elapsed before the filing of suit, regardless of whether the prescription of one year or ten years is applicable.

Accordingly, the decision of the court of appeal is affirmed and the cause is remanded to the trial court for further proceedings. The defendant is cast for costs of this review.

SANDERS, C. J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Plaintiff filed suit on February 19, 1976, against Dr. Peden’s insurer alleging that he had negligently performed the operation (July 5, 1973) stretching a nerve in plaintiff’s face causing the painful symptoms. I consider that the one-year prescriptive period applies to this action. La.Civil Code art. 3536; Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963); Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App.3d Cir. 1974), writ denied, 315 So.2d 144 (La. 1975). It is well settled that, upon trial of a preemptory exception pleaded at or prior to the trial of the case, evidence may be introduced to prove the claim has or had not prescribed. La.Code Civ.P. art. 931. Generally, the burden of proof rests upon the party pleading prescription. However, when the claim is prescribed on its face, the burden of proof that prescription has been interrupted, suspended or did not commence to run is on the plaintiff. Accordingly, in the instant case, plaintiff should have offered proof that prescription did not run against him because he was ignorant of the existence of facts that would entitle him to bring suit under the doctrine of “contra non valentem agere, non currit prescripto.” Hence, I consider that the trial judge correctly sustained the exception of prescription in this case. I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Arthur JONES.
    No. 61306.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Orleans Indigent Defender Program, Thomas W. Mull, Laurence D. Rudman, Robert J. Zibilich, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence defendant to imprisonment at hard labor for a period of twenty (20) years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La. 1976); State v. Lee, 340 So.2d 180 (La.1976). See also Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).


text:
    STATE of Louisiana v. Adolph F. LEE.
    No. 61878.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    Wilfret R. McKee, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The issue of whether defendant was denied effective assistance of counsel is more properly raised by application for writ of habeas corpus at which time a full eviden-tiary hearing can be conducted. State v. Anthony, 347 So.2d 483 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Finding no reversible error based on the record before us, defendant’s conviction and sentence are affirmed.

l


text:
    STATE of Louisiana v. Michael DAY.
    No. 62004.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents.


text:
    STATE of Louisiana v. August E. OBERMEYER.
    No. 62240.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    John F. Rau, Jr., Harvey, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Michael Grosz, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

CALOGERO and DENNIS, JJ., dissént.


text:
    STATE of Louisiana v. Norman WILLIAMS.
    No. 62279.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    Edward J. Lilly, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., John M. Mam-oulides, Dist. Atty., Clarence E. McManus, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents.


author: HALL, Judge.

text:
    Coy JOHNSON, John Dan Brown and Jesse R. Joyner, Plaintiffs-Appellants, v. ELECTRONIC SALES & SERVICE CO., INC. and Hugh L. Norton, Defendants-Appellees.
    No. 13631.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.

      Hess & Washofsky by Dennis M. Angelico, New Orleans, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by John F. Cassibry, Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiffs, former employees of the defendant corporation, filed suit against the corporation and its president, alleging their employment was terminated because of their union membership and activity in violation of LSA-R.S. 23:981, et seq., the Louisiana Right-to-Work Law. Plaintiffs sought an injunction and damages.

Defendants filed a declinatory exception of lack of jurisdiction over the subject matter. Holding that the subject matter of the suit is within the exclusive jurisdiction of the National Labor Relations Board, the trial court sustained the exception and dismissed the suit. Plaintiffs appealed. We affirm.

The issue is whether the so-called right-to-work exception to the rule of federal preemption and exclusive NLRB jurisdiction, contained in Section 14(b) of the Taft-Hartley Act, 29 U.S.C.A. § 164(b), applies to the subject matter of this suit in view of the fact that the petition alleges a violation of the Louisiana Right-to-Work Law.

The general rule is that the field of labor relations is perempted by federal law. In matters arising out of activities arguably regulated by Sections 7 and 8 of the National Labor Relations Act, 29 U.S.C.A. §§ 157 and 158, both state and federal court jurisdiction must yield to the jurisdiction of the National Labor Relations Board. San Diego Building Trades Council, Etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The activities complained of here are clearly regulated by Section 8 and state court jurisdiction must yield unless, as argued by plaintiffs, the “right-to-work” exception to the rule of exclusive jurisdiction contained in Section 14(b) of the Taft-Hartley Act is applicable to the subject matter of this case.

Section 14(b) permits states to prohibit the execution of agreements requiring membership in a labor organization as a condition of employment. Such agreements are commonly called union security agreements and state laws prohibiting such agreements are commonly called right-to-work laws. It has been recognized that state courts have jurisdiction to enforce state right-to-work laws, that is, laws prohibiting or regulating union security agreements. Retail Clerks Int. Assn., L. 1625 v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963); Oil, Chemical & Atomic Workers, Etc. v. Mobil Oil, 426 U.S. 407, 96 S.Ct. 2140, 48 L.Ed.2d 736 (1976); Algoma Plywood & Veneer Co. v. Wisconsin Employ. R. Bd., 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691 (1949).

It has also been recognized, however, that state power or jurisdiction in connection with a right-to-work statute exists only where there is a union security agreement involved. Retail Clerks Int. Assn., L. 1625 v. Schermerhorn, supra; Local No. 438 Construction & Gen. Lab. U. v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963). See also Stricker v. Swift Bros. Const., 260 N.W.2d 500 (S.D.1977); Carpenters & Joiners Local Union No. 1097 v. Hampton, 457 S.W.2d 299 (Tex.Civ.App.-Tyler, 1970).

In the case before this court, there is no union security agreement between the employer and the labor organization of which plaintiffs are members. The case does not in any manner involve a union security agreement. The fact that the Louisiana Right-to-Work Law may go beyond the regulation of union security agreements and may regulate other activities, also regulated by the NLRA, does not bring such activity within the scope of state jurisdiction nor create an exception to the exclusive jurisdiction of the NLRB as to those activities. The so-called right-to-work exception created by Section 14(b) of the Taft-Hartley Act does not apply to activities unrelated to union security agreements even though such unrelated activities may also be regulated within the framework of a state statute styled a “Right-to-Work” law.

Plaintiffs also contend the state court has jurisdiction because it has jurisdiction of plaintiffs’ action against the employer corporation’s president, individually, under state law. Joining an executive officer of the employer, through whom the corporate employer acted, in k suit arising out of activities arguably regulated by Section 8 of the NLRA, cannot serve to vest a state court with jurisdiction over the subject matter where that jurisdiction is per-empted by federal law and exclusively vested in the NLRB.

The Louisiana court is without jurisdiction over the subject matter of this suit and the exception to the jurisdiction was properly sustained. The judgment of the district court dismissing plaintiffs’ suit is affirmed at plaintiffs-appellants’ costs.

Affirmed.

      . LSA-R.S. 23:981:
      § 981. Declaration of public policy
      “It is hereby declared to be the public policy of Louisiana that all persons shall have, and shall be protected in the exercise of the right, freely and without fear of penalty or reprisal, to form, join and assist labor organizations or to refrain from any such activities.”

      . 29 U.S.C.A. § 164(b):
      “(b) Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.”

      . 29 U.S.C.A. § 157:
      “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . .
      29 U.S.C.A. § 158(a)(1) and (3):
      “(a) It shall be an unfair labor practice for an employer—
      “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

      “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . .”

      . Garmon:

      “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.”

      . Plaintiffs also filed charges against the employer with the NLRB, alleging violation of Section 8(a)(1) and (3), based on the same alleged activities. The regional director refused to issue a complaint because there was insufficient evidence to warrant further proceedings. Plaintiffs took an administrative appeal which was denied on findings that the evidence failed to establish that they were laid off because of union or other concerted protected activity rather than because their employer did not have available work. The dual and parallel actions pursued by plaintiffs in this instance arising out of the same alleged facts illustrate the reason and necessity for the federal per-emption and exclusive jurisdiction rules which prevent a duplicity of actions and possible conflicting results.

      . Sehermerhorn:

      “As a result of § 14(b), there will arise a wide variety of situations presenting problems of the accommodation of state and federal jurisdiction in the union-security field . . state power, recognized by § 14(b), begins only with actual negotiation and execution of the type of agreement described by § 14(b). Absent such an agreement, conduct arguably an unfair labor practice would be a matter for the National Labor Relations Board under Garmon.”

      . Currv:

      “The allegations of the complaint, as well as the findings of the Georgia Supreme Court, made out at least an arguable violation of § 8(b) of the National Labor Relations Act, 29 U.S.C. § 158(b). Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay within the exclusive powers of the National Labor Relations Board, (citations omitted) Nor is the jurisdiction of the Georgia courts sustainable, as respondents urge, by reason of the Georgia right-to-work law and by § 14(b) of the National Labor Relations Act, 29 U.S.C. § 164(b). This precise contention has been previously considered and rejected by this Court, (citations omitted) The Georgia Supreme Court clearly exceeded its power in authorizing the issuance of a temporary injunction.”


text:
    Gerald G. SMITH, Plaintiff-Appellee, v. The HANOVER INSURANCE COMPANY, Defendant-Appellant.
    No. 13632.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellant.
    Jack D. Barnett, Shreveport, for plaintiff-appellee. .
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

This appeal by the defendant insurance company is from a partial summary judgment in favor of the plaintiff insured, adjudging that uninsured motorist coverage exists under the undisputed facts of the case and leaving for future trial and determination the issues of fault on the part of the drivers of the vehicles involved and the amount of plaintiff’s damages. Without considering the merits of the coverage issue, this court reverses and sets aside the judgment because procedural law does not provide for or allow a partial summary judgment which decides only a legal issue in the case and neither grants nor denies any of the relief claimed by any party.

Plaintiff filed suit against his insurer seeking to recover benefits under the uninsured motorist provisions of the policy covering his personal automobile. Plaintiff was injured in an accident resulting from the collision of two Bossier City fire trucks, in one of which plaintiff was riding in the course and scope of his employment as a Bossier City fireman. The liability insurer of the city vehicles denied coverage.

Defendant filed a motion for summary judgment contending plaintiff is not entitled to recover under the uninsured motorist provisions, which provide that the company will pay all sums which the insured shall be legally entitled to recover from the owner of an uninsured highway vehicle, because (1) the insured is not legally entitled to recover from the owner of the vehicles involved since his exclusive remedy against the owner, his employer, is for workmen’s compensation benefits; and (2) the definition of “uninsured highway vehicle” excludes a vehicle furnished for the regular use of the insured, and the fire truck was furnished for plaintiff’s regular use.

Plaintiff also filed a motion for summary judgment, praying that the uninsured motorist coverage be recognized as applicable to the injuries sustained by him.

In a written opinion the trial court held that there was coverage and overruled defendant’s motion for summary judgment. It granted plaintiff’s motion for summary judgment “to the extent that he be permitted to attempt to establish fault on the part of one of the ‘uninsured motorists’ involved in the accident in which he was injured, and the extent of his damages with a right of recovery against his own insurer, Hanover, under the uninsured motorist provisions of his own policy.” Judgment was rendered accordingly. No appeal could be taken from the judgment overruling defendant’s motion for summary judgment under the express provisions of LSA-C.C.P. Art. 968. However, defendant perfected a suspensive appeal from the judgment granting summary judgment in favor of the plaintiff.

Both parties briefed and argued the merits of the coverage issue. This court, on its own motion, questioned whether the judgment appealed from is an appealable judgment since it decides only one issue in the case, leaving other issues undecided, and neither grants nor denies any of the relief claimed by either party. The court invited the filing of supplemental briefs on the issue of the court’s jurisdiction.

It is evident that the isolated issue of insurance coverage is not ripe for merit-consideration on appeal at this time. Thus, the case should go back to the trial court because either the partial judgment is not appealable or the partial judgment is inappropriate procedurally. Defendant’s supplemental brief zeros in on the problem created by this “piecemeal” judgment and appeal. Defendant takes the position that the judgment is appealable and the Appellate court has jurisdiction, but the judgment rendered is not authorized by procedural law and, therefore, should be set aside. We believe this approach represents the correct resolution of the problem.

LSA-C.C.P. Art. 968 provides that summary judgments are final judgments. LSA-C.C.P. Art. 2083 provides that an appeal may be taken from a final judgment. Since the partial judgment appealed from in this case purports to be a summary judgment and, therefore, a final judgment, the judgment is appealable and this court has jurisdiction. Beckham v. Hartford Acci dent & Indemnity Company, 137 So.2d 99 (La.App.3d Cir. 1962).

The plaintiff or defendant may move for summary judgment in his favor, “for all or part of the relief for which he has prayed.” LSA-C.C.P. Art. 966. It is clear that a summary judgment may grant less than all of the relief prayed for. LSA-C.C.P. Arts. 968 and 1915. However, a summary judgment must grant at least some of the relief prayed for by one of the parties. The plaintiff prayed for a money judgment against the insurance company. Plaintiff’s motion for summary judgment requested no such relief and the summary judgment granted no such relief in whole or in part. Therefore, the partial summary judgment which neither grants nor denies any of the relief claimed by the moving party is not authorized under the Code of Civil Procedure.

Plaintiff’s use of the motion for summary judgment to obtain a ruling on his cause of action without seeking any part of the relief he claims is an unauthorized use of a procedural vehicle and illustrates the problem of piecemeal adjudication and appeal which can result from the misuse of provisions intended to streamline our civil procedure. The judgment must be set aside and the case remanded, without merit-consideration of the coverage issue. Compare Walker v. Western-Southern Life Insurance Company, 361 So.2d 892 (La.App.2d Cir. 1978) in which a judgment sustaining a partial exception of no cause of action was set aside and the case remanded.

The Beckham case cited supra, is almost totally on all fours with the case at bar. In that case the district court granted summary judgment in favor of the plaintiff on the issue of liability, leaving undetermined the issue of quantum. On writs, the Court of Appeal set aside the judgment and remanded the case, holding:

“. . . any construction permitting summary judgment on the issue of liability alone, under the general provisions of LSA-C.C.P. Art. 966 that summary judgments may be rendered ‘for all or part of the relief for which he has prayed’ would defeat the prime purpose of all of our new rules of procedure which is to secure the just, speedy and inexpensive determination of every action. This is true because, as stated above, LSA-C.C.P. Art. 968 states categorically that summary judgments are final judgments and as such they are appealable. If we were to allow the appeal of a summary judgment on the issue of liability alone, it would of course result in piecemeal appeals and completely frustrate the very purpose of the summary judgment procedure.
“In addition to the above reasons, it appears that a close reading of LSA-C. C.P. Art. 966 will show that a summary judgment may be granted for all or part ‘of the relief for which he has prayed’. In the instant case, the only ‘relief’ for which plaintiff has prayed is a money judgment. The summary judgment granted no such relief, in whole or in part. Actually the summary judgment in the instant ease simply ruled on plaintiff’s cause of action but did not grant any of the relief for which he prayed. The distinction between a ‘cause of action’ and the ‘relief’ prayed for is well defined in our law. LSA-C.C.P. Arts. 421, 891, 862. For general discussions see Daniels v. Thomas, 10 Cir., 225 F.2d 795, certiorari denied, 350 U.S. 932, 76 S.Ct. 303, 100 L.Ed. 815; Tonn v. Inner Shoe Tire Co., Tex.Civ.App., 260 S.W. 1078; California Trust Co. v. Cohn, 214 Cal. 619, 7 P.2d 297.
“It is therefore our conclusion that the trial court was in error in granting plaintiff’s motion for summary judgment as to the issues of liability alone. The said summary judgment must therefore be annulled and set aside and consequently cannot be appealed.”

See also Stevens v. State Mineral Board, 255 La. 857, 233 So.2d 542 (1970) in which the Supreme Court held that Article 966 was not intended to be used to permit “piecemeal” trial of cases.

Louisiana’s traditional procedural policy, reflected in the Code of Civil Procedure, disfavors the piecemeal trial and appeal of cases except where expressly permitted by statute. In several cases where the issue of negligence or liability alone has been tried and adjudicated, the judgment determining the issue has been held to be a nonappeala-ble interlocutory judgment. In some cases the appeal was dismissed. In other cases the judgment was set aside and the case remanded, but in all of the cases the merit-determination by the trial court was not reviewed. Deltic Farm & Timber v. Bd. of Com’rs, etc., 353 So.2d 1105 (La.App.2d Cir. 1977); Celestine v. Hub City Motors, Inc., 327 So.2d 700 (La.App.3d Cir. 1976); Bettencourtt v. Boyd, 209 So.2d 339 (La.App.1st Cir. 1968); Jeansonne v. Willie, 188 So.2d 170 (La.App.4th Cir. 1966). See also McDonald v. Book, 215 So.2d 394 (La.App.3d Cir. 1968), overruled in part by Celestine. See also Tate, Work of Appellate Courts, 1968-1969, 30 La.L.Rev. pp. 298-301.

For the reasons assigned, the summary judgment in favor of the plaintiff is reversed and set aside, plaintiff’s motion for summary judgment is overruled, and the case is remanded for further proceedings. Costs are to await the final determination of the cause.

Reversed and remanded.


author: MARVIN, Judge.

text:
    Fred FORD, Plaintiff-Appellee, v. E. L. MEREDITH, Jr., Defendant-Appellant.
    No. 13635.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Baker, Culpepper & Brunson by Donnie G. Brunson, Jonesboro, for defendant-appellant E. L. Meredith, Jr.
    Whitten & Blake by John C. Blake, Jonesboro, for plaintiff-appellee Fred Ford.
    BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In this case between the owner and a contractor arising out of disputed verbal agreements for the construction of an addition to a residence, the defendant contractor appeals from a judgment which can-celled his labor lien and rejected his demands for $4,535.82 labor costs. We reverse.

The owner contends that defendant first agreed to construct the addition for $14,000 and that this contract was increased after construction began to $16,000. The contractor contends that the first contract was on the basis that he would be paid for the labor and the material which were necessary to complete the job and that the second contract was on the basis that the owner would pay for materials himself and would pay the labor costs to the contractor.

The addition contemplated by the owner was a finished garage and a den. No specifications were drawn other than a floor plan sketch. About three weeks after construction began a description of materials was furnished by the contractor to the lending institution providing permanent financing, but this too, is extremely broad and non-specific and does not itself constitute a contract.

Some seven weeks after construction began a dispute arose about the nature and the cost of the construction. The owner ordered the contractor off the job and unsuccessfully sought to contract with others. Eventually, the owner requested terms on which the contractor would return and finish the job. The contractor returned to work. From this time until the contractor worked no more, the record is clear that the owner paid for all materials and the contractor was keeping time and was being paid, at least in part, by the owner for the labor performed by him and his workmen on the job.

The lower court found that turnkey contracts (for a fixed price) had been made by the litigants. Even should we accept this finding by the lower court, such a contract, lacking in specificity as this one is, affords little relief to the homeowner. The nature of the support of the two-story addition, for instance, is not specified. The contractor originally installed one or more posts to provide support. The owner would not accept a post support for the structure and desired a change. The post supports were removed and the construction was altered to accommodate one or more steel beams.

Other examples of changes in work once begun or finished exist in the record. In all these instances, however we have not one shred of evidence as to what the first or the second agreement was on these questions. What was or what was not contemplated by the litigants as to the details in and the type of construction is glaringly absent from this record.

The owner claimed below that he had spent some $2,600 over and above the alleged $16,000 price to complete the addition. Some of the owner’s expenditures were admittedly not included in the alleged original contract. The contractor claimed below and here that after he resumed work he is owed $4,535.82 for labor for which he has not been paid.

When the first dispute arose and the contractor quit the job the owner paid the contractor $3,651.70 by his check of November 15, 1976. This figure derives from an invoice covering the cost of all labor and material from August 2, the beginning of construction, through September 24, 1976. The invoice shows materials at $1,460.96 and labor, workmen’s compensation, unemployment insurance and social security taxes at $2,190. The owner denied receiving an invoice but admits paying the amount of the invoice before the contractor returned to work about February 1, 1977. The contractor then worked through April 15,1977.

After the contractor returned to work the owner began paying the bills for materials direct to suppliers and began paying directly laborers, other than the contractor and his workmen. The owner also paid the contractor $2,000 on two occasions between February 1 and April 15, 1977, for the contractor’s labor and related costs. During this time and before April 15, 1977, the owner paid eight bills to materialmen totaling more than $6,500.

When an agreement lacks specificity and the intent of the parties is doubtful, the manner in which the agreement has been executed by both parties furnishes a rule for interpreting the agreement. C.C. Art. 1956. Thus whatever label is put on this agreement which is lacking in specifics, the actions of both parties after the contractor first quit the job in September, 1976 show that the owner obligated himself to pay the contractor’s labor costs on the second contract as they accrued. We therefore must reverse the lower court on this point.

Accordingly,

IT IS ORDERED AND ADJUDGED:

That there be judgment in favor of E. L. Meredith, Jr. and against Fred Ford for $4,535.82 with legal interest from date of judicial demand;

That E. L. Meredith’s lien and privilege, dated May 27, 1977, recorded under Register No. 234821 in Book 89, Page 145 of the Mortgage Records of Jackson Parish, Louisiana, be recognized as valid and enforceable.

IT IS FURTHER ORDERED that Fred Ford pay all costs of these proceedings here and below.

REVERSED AND RENDERED.


author: PRICE, Judge.

text:
    Virginia Star Lombardi MILLER, Defendant-Appellant, v. Walter Scott MILLER, Plaintiff-Appellee.
    No. 13637.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Booth, Lockard, Jack, Pleasant & Lesa ge by H. F. Sockrider, Jr., Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Hani E. Dehan, Shreveport, for plaintiff-ap-pellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

This is an appeal by the divorced mother of three children from a judgment changing their custody to the father and terminating the previous judgment for child support.

• The parties were residents of Shreveport at the time a judgment was rendered awarding appellant pendente lite custody and child support during the pendency of their reciprocal demands for a legal separation. After a separation judgment was rendered in November 1975, appellant, in July 1976, moved with the three children to Portland, Oregon, and later to the state of Washington. During the summer of 1977, appellee learned that appellant and the children were living with a man to whom she was not married in tents in a wilderness area known as Lopez Island, Washington. Appellee, who continued to reside in Shreveport, went to Washington and verified the conditions under which appellant was living and made demands upon her to either marry the man with whom she was living or to let him have the custody of the children. In December 1977 appellee again went to Washington and found appellant and the children still living at the same place with the man in two small trailers. Appellee obtained permission to take the children on a skiing trip and instead brought them back to his home in Shreveport. He immediately filed this proceeding to obtain their custody and to terminate support payments to appellant. An attorney was appointed to represent appellant who is a non-resident. The day after the suit was filed, appellant came to Shreveport and without appellee’s knowledge, took the two younger children back to the state of Washington. The third child, a fifteen-year-old boy, requested to remain with ap-pellee and was permitted to do so.

Appellant, who refused to accept the certified letter from the appointed attorney notifying her of the pendency of the proceeding, made no appearance by the filing of pleadings or in person at the trial of the rule. An oral objection to the jurisdiction of the court was made by the court appointed attorney.

Appellant has concisely framed the issues presented on her limited appeal in brief to this court as follows:

(1) Did the trial court retain jurisdiction to modify or terminate child custody and therefore support?
(2) If not, did the trial court obtain jurisdiction therefor by reason of the children’s forced, admittedly surreptitious presence in Caddo Parish on the date suit was filed and on the date the curator was served?
(3) If so, did it lose that jurisdiction over the two younger children when Mrs. Miller removed them from the State of Louisiana prior to the trial on the rule nisi?
(4)If there was no jurisdiction over one or more of these children, since the support award was in globo and no proration thereof was sought, did the court have jurisdiction to terminate any or all thereof?

Appellant contends that the children’s domicile follows that of the custodial parent, and as she has become a domiciliary of Washington, the children are no longer domiciled in Louisiana, and the courts of this state lack jurisdiction to render any judgment on their custody. The statutory law defining the jurisdiction of the court is La.C.C.P. Art. 10 A(5) providing as follows:

A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
* * * * * *
(5)A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;
******

There is no dispute as to the fact that the children were all three present within this state on the date of the filing of this proceeding. It is immaterial that two of the children were removed prior to trial as once jurisdiction has attached it is not lost by the subsequent removal of the person from the jurisdiction of the court. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953), DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir. 1977).

It is therefore apparent that the facts of this case fall within the literal wording of the above statute conferring jurisdiction on the court unless some further qualification is read into the statute relating to the presence of the children in this state having been improperly obtained by devious methods. Appellant contends this court should interpret the phrase “or is in, this state;” as used in the statute to exclude children brought into the state through subterfuge. Any other interpretation, appellant contends, would be against public policy and violative of due process and the principle of comity between states. In support of this position she relies on the decisions in Odom v. Odom, 345 So.2d 1154 (La.1977) and Smith v. Ford, 288 So.2d 71 (La.App. 4th Cir. 1974).

In Odom the custodial parent had become domiciled in Texas and the children in question were in Texas at the time the other parent attempted to recover custody through the Louisiana court which had originally granted the custody decree. The Supreme Court held the trial court did not have jurisdiction under La.C.C.P. Art. 10 A(5) as the children were no longer domiciled or present in this state. Odom is therefore factually distinguishable from this case. The Supreme Court in Odom specifically pointed out that it did not rule on whether the exercise of continuing jurisdiction under 10 A(5) might under some circumstances violate due process or the principle of comity.

The Fourth Circuit in Smith v. Ford, supra, did read into the statute, in addition to the requirement of presence of the children in this state, that there must be some compelling state interest to justify the exercise of jurisdiction. This rationale has since been rejected by the same court, and the plain language of the statute was followed in Rafferty v. Rafferty, 313 So.2d 356 (La. App. 4th Cir. 1975).

The state of Louisiana is the state which initially assumed jurisdiction over the children and from whose jurisdiction the children were removed by appellant. The trial court had jurisdiction under the plain wording of 10 A(5) and had the discretion to either exercise this jurisdiction or to refuse to do so under the principle of comity and related doctrines.

There is no question that if the court had jurisdiction to modify the custody award that the judgment of support for the children could also be deleted. The continuing jurisdiction of a Louisiana court to modify a support award has been decided by this court recently in DeFatta v. DeFatta, supra.

For the reasons assigned, the judgment is affirmed at appellant’s cost.


text:
    David Leroy CARROLL, Sr., et al., Plaintiffs-Appellants, v. AETNA CASUALTY AND SURETY COMPANY et al., Defendants-Appellees.
    No. 13640.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.

      Stephen E. Everett, Alexandria, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs have appealed the judgment sustaining a plea of prescription to their claims against a physician for damages in a malpractice suit.

The principal issue is whether the prescriptive period for a tort or breach of contract cause of action is applicable.

Plaintiffs brought this suit on July 6, 1977, to recover damages for themselves and their minor son, alleged to have been caused by the neglect of the defendant physician in the performance of medical services related to the birth of the child on January 19, 1971. Plaintiffs contend that because of a breech delivery, the child was deprived of oxygen for a period of time sufficient to cause permanent brain damage which is now apparent in the impaired learning and development of the child.

The physician and his liability insurer filed peremptory exceptions pleading the prescription of one year for tort claims provided by La.C.C. Art. 3536 and alternatively the peremption period of three years provided by La.R.S. 9:5628(A).

On trial of the exceptions it was shown that plaintiffs had constructive knowledge of the alleged negligence of the physician and its causal relation to the damages sustained for a period in excess of one year prior to the filing of this suit. This would ordinarily bar recovery under the holding of this court in Quick v. Aetna Casualty and Surety Company, 347 So.2d 59 (La.App. 2d Cir. 1977) which followed the Supreme Court decision in Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970). Plaintiffs contend however that their action is one for breach of contract, and that the applicable prescriptive period is ten years. The trial court rejected this argument basing its holding on the Supreme Court decision in Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963), after finding that the physician had not contracted with plaintiffs to warrant a particular result. Plaintiffs contend that it is not necessary to find that a physician agreed to achieve a specific result, but that a mere agreement to provide medical services constitutes an implied contract to use the usual degree of professional skill, and therefore, a suit based on the failure to use this skill is an action for breach of contract which is subject to the ten-year prescriptive period. Plaintiffs rely on the decisions of the First and Fourth Circuits in Henson v. St. Paul Fire and Marine Insurance Company, 354 So.2d 612 (La.App. 1st Cir. 1977), and Creighton v. Karlin, 225 So.2d 288 (La.App. 4th Cir. 1969). Henson, following the decision in Creighton, holds that “when a patient goes to a doctor for treatment and the doctor agrees to treat him a contract has been entered into.” The Third Circuit, based on Phelps v. Donaldson, supra, has rejected the view of Henson and Creighton and held that medical malpractice actions are in tort and prescribed in one year unless the physician has contracted for a particular result. Steel v. Aetna Life and Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974) and Dauzat v. St Paul Fire and Marine Insurance Company, 336 So.2d 540 (La.App. 3rd Cir. 1976). This court, relying on Phelps v. Donaldson, supra, has also followed the same rule as set forth in Steel and Dauzat in its decisions in Quick v. Aetna Life and Casualty, supra, and Ball v. Siess, 351 So.2d 845 (La.App. 2d Cir. 1977). We do not find any valid reason to now reverse our position on this question as it appears to be in accordance with the latest expression of the Supreme Court.

For the foregoing reasons, the judgment is affirmed at appellant’s cost.

      . We do not find it necessary to discuss whether this 1975 statute providing for a prescriptive and peremptive period for all medical malpractice actions, whether in tort or contract, should be given retroactive effect because of our view on the correctness of the trial court’s finding that the one year tort prescription is controlling.

      . An application for writs has been granted by the Louisiana Supreme Court in this case.


text:
    James ANDERSON et al., Plaintiffs-Appellants, v. STATE of Louisiana and Mary Evelyn Parker, Louisiana State Treasurer, Defendants-Appellees.
    No. 13643.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.

      Jerry Kircus, Shreveport, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., A. Mills McCawley, Asst. Atty. Gen., by Carl E. Stewart, Shreveport, for defendants-appel-lees.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiffs, employees of the Caddo Parish Police Jury charged with the duty of housing, guarding and providing for prisoners at the Caddo Correctional Institute, filed suit against the State of Louisiana and its treasurer, alleging they are de facto deputy sheriffs and entitled to be paid supplemental pay under the provisions of LSA-R.S. 33:2218.1, et seq. Defendants filed dilatory and peremptory exceptions, including an exception of prematurity grounded on plaintiffs’ failure to exhaust their administrative remedies by submitting the question of their eligibility to the board of review as required by LSA-R.S. 33:2218.7. From a judgment sustaining the exception of prematurity and dismissing their suit, plaintiffs appealed.

On appeal plaintiffs do not question the general rule that a person must exhaust his administrative remedies before he is entitled to seek judicial relief. O’Meara v. Union Oil Co. of California, 212 La. 745, 33 So.2d 506 (1947); Bounds v. State Department of Highways, 333 So.2d 714 (La. App.2d Cir. 1976). Plaintiffs’ attack is leveled at the constitutionality of the provisions creating a board of review and providing that its decisions are final. It is contended that since the statute does not provide for judicial review, it is unconstitutional as conflicting with La.Const. Art. V, § 16 (vesting district courts with original jurisdiction of all civil matters and with exclusive original jurisdiction of cases involving the state), Art. I, §§ 2, 19 and 22 (providing for due process, right of judicial review and adequate remedy in court), and Art, II, §§ 1 and 2 (providing for separation of powers).

Plaintiffs’ premise that the statute, by providing that decisions of the board of review are final, precludes judicial review of the board’s decisions is erroneous. The Administrative Procedure Act specifically provides that a person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review. LSA-R.S. 49:951, et seq., 964. Even in the absence of statutory authority, the right of judicial review of administrative proceedings exists. Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (La.1971); Werner v. Bd. of Trustees of New Orleans Police, etc., 360 So.2d 615 (La.App.4th Cir. 1978). In reviewing the decision of an administrative agency, the district court exercises its original exclusive jurisdiction. Bowen v. Doyal, supra.

The constitutional article vesting district courts with original jurisdiction of civil matters and exclusive original jurisdiction of cases involving the state does not preclude the legislature from creating administrative agencies with quasi-judicial duties, and whose decisions are subject to judicial review. “Original” and “exclusive” are terms regulating jurisdiction of cases as between the several courts established by the constitution. The terms do not preclude the exercise of jurisdiction by administrative agencies over matters which are not ripe for judicial action.

Requirements of due process are satisfied by the availability of judicial review as previously discussed.

The board of review, created by the legislature, exercises administrative power as an arm of the executive branch of the state government, subject to judicial review. It does not exercise power belonging to the judicial branch of government. There is no conflict with the separation of powers article of the constitution.

For the reasons assigned, and for the reasons expressed in the excellent written opinion of the district court, the judgment is affirmed at appellant’s costs.

Affirmed.

      . The statute provides for the creation of a special fund in the state treasury for the payment of supplemental salaries to municipal police officers and “full-time commissioned deputy sheriffs.”

      . LSA-R.S. 33:2218.7 A and B:
      A. There is hereby created a board of review which shall be composed of three members, one of whom shall be the commissioner of administration or a representative of the division of administration selected by him; one of whom shall be a member of the Louisiana Association of Chiefs of Police selected by the president of said association; and one of whom shall be the director of the state department of public safety or a representative from said department selected by the director.
      B. Whenever any question arises as to the eligibility of any person to receive additional pay out of state funds as provided by this Subpart, the question thereof, together with all of the facts relating thereto, shall be submitted to the board of review herein created for determination, and the decision of the board with regard to eligibility shall be final.

      . La.Const. Art. V, § 16:
      Section 16. (A) Original Jurisdiction. Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters. It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property; the right to office or other public position; civil or political rights; probate and succession matters; the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships.
      (B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.

      . La.Const. Art. I, §§ 2, 19 and 22:
      Section 2. No person shall be deprived of life, liberty, or property, except by due process of law.
      Section 19. No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.
      Section 22. All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

      .La.Const. Art. II, §§ 1 and 2:
      Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
      Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.