author: PRICE, Judge. MARVIN, Judge,

text:
    Roberta Allen BELL, Plaintiff-Appellant, v. John Wesley BELL, Defendant-Appellee.
    No. 13787.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.

      Kennedy, Goodman, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by James E. Bolin, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.

       BOLIN, J., recused.

   PRICE, Judge.

This appeal arises out of a summary proceeding brought by Roberta Allen Bell, former wife of John Wesley Bell, for alimony after she was awarded a final divorce on grounds of adultery. The issue presented is whether the rejection of the wife’s demands in a prior separation suit between the parties has the effect of casting her with fault which precludes her right to post-divorce alimony.

The pertinent background of the litigation between the parties is as follows: in March of 1977 plaintiff filed a suit against her husband for separation on grounds of physical and mental cruel treatment. Defendant filed an answer which contained a general denial, an exception of no cause of action, and a plea of reconciliation. After a trial on the merits, the district court, without giving written reasons or recording oral reasons into the minutes of the court, rendered judgment on May 10, 1977, rejecting plaintiff’s demands with prejudice. The parties continued to live apart, and thereafter, on March 2, 1978, plaintiff filed an action against defendant for a divorce on grounds of adultery and procured a default judgment on May 24, 1978. This rule for alimony was filed on July 28, 1978. Defendant filed an answer to the rule in which he plead estoppel and res judicata based on the contention that the judgment rejecting plaintiff’s demands in the prior separation suit filed by her had the effect of decreeing her to be at fault.

The trial court on the basis of the record and pleadings before it converted the several defenses asserted in defendant’s answer into the exception of no cause of action and dismissed plaintiff’s demands.

The specifications of error assigned by plaintiff on this appeal are:

1) That the trial court erred in finding as a matter of law and fact that the rejection of the wife’s suit for a separation was equivalent to a finding that she was not free from fault as required by Art. 160 of the Louisiana Civil Code; and
2) That the trial court erred in not finding as a matter of law that when the wife obtained a judgment of divorce on grounds of adultery, that the judgment constituted a determination of fault in favor of the wife which was conclusive for purposes of alimony after divorce.

There is no longer any question that the post-separation adultery on the part of defendant does not relieve plaintiff of establishing she was free of pre-separation fault in view of the decision of the Louisiana Supreme Court in Bruner v. Bruner, 364 So.2d 1015 (La.1978). Therefore if the prior separation judgment has the effect contended by defendant, plaintiff no longer has any right to alimony under La.C.C. Art. 160. Defendant’s position is postulated primarily on the theory that the plaintiff’s failure to prove the allegations of cruel treatment by defendant in her separation suit places plaintiff at fault in causing the separation in that she abandoned the matrimonial domicile without lawful cause.

Estoppel against plaintiff because of the judgment rendered in the prior proceeding should not be effective unless it is clearly shown that her fault was at issue and was resolved in that proceeding. There was no reconventional demand by defendant for a separation or any allegations made by him in his answer charging plaintiff with fault in leaving the domicile or causing the separation. His answer simply denied the several incidents of physical and mental cruelty alleged against him. The rejection of plaintiff’s demands could have been for several reasons which would not necessarily require a finding of fault on her part.

The cases relied on by defendant, Vinot v. Vinot, 239 La. 587, 119 So.2d 474 (1960) and Broussard v. Broussard, 320 So.2d 279 (La. App. 4th Cir. 1975), do hold that a wife who leaves the matrimonial domicile is not free of fault unless she can show her husband’s treatment provoked her to leave. However, this rule has been further refined by Sykes v. Sykes, 321 So.2d 805 (La.App. 4th Cir. 1975) which held that the failure of a spouse who leaves the matrimonial domicile to prove his demand for separation on grounds of cruel treatment did not of itself establish him guilty of abandonment. See also Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976), and the concurring opinion of Judge Beer in Clary v. Clary, 341 So.2d 628, 629 (La.App. 4th Cir. 1977). Sykes, supra, discusses lawful cause and abandonment as follows:

Mrs. Sykes, nevertheless, contends her husband must be adjudged guilty of abandonment since he failed in his demand for separation based on cruel treatment. We disagree.
“Lawful cause” necessary to justify a spouse’s leaving the matrimonial domicile is not the equivalent of lawful grounds for a separation from bed and board under C.C. art. 138. When spouses are incompatible and come to this realization after sufficient reflection and reasonable attempts to resolve their differences, the law does not require them to continue living together until one or the other finally gathers sufficient evidence to prove one of the grounds listed in C.C. art. 138. If neither spouse has grounds for legal separation, they can agree to live separately until the passage of time required for obtaining a separation on the grounds of living apart, and the party leaving the matrimonial domicile is not automatically guilty of abandoning the spouse who remains.

In the instant case we do not find that the question of whether plaintiff had lawful cause to leave the matrimonial domicile or was otherwise guilty of fault which would be sufficient to preclude her right to permanent alimony has been judicially determined merely because her demands were rejected in the separation proceeding instituted by her.

Neither do we find that the subsequent rendition of the divorce against defendant on grounds of adultery has relieved plaintiff of her burden of establishing her freedom of fault at the time of the initial separation of the parties under La.C.C. Art. 160. See Smith v. Smith, 216 So.2d 391 (La.App. 3d Cir. 1968). Plaintiff did not request alimony in her suit against defendant for final divorce. Therefore, the expressions of the Louisiana Supreme Court in Fulmer v. Fulmer, 301 So.2d 622 (La.1974) and Thomason v. Thomason, 355 So.2d 908 (La.1978) that fault determined in a proceeding for divorce is conclusive for purposes of permanent alimony following divorce is not applicable to the circumstances presented here. Smith, supra, was discussed with approval in Bruner, supra, which was a later decision than Fulmer, supra, and Thomason, supra. We are therefore of the opinion the rule of Smith, supra, is viable and is applicable in this situation.

For the foregoing reasons the judgment sustaining the exception of no cause of action and dismissing plaintiff’s demand for alimony is reversed, and the case is remanded for further proceedings not inconsistent with the views expressed herein and in accordance with law.

Costs of this appeal are assessed to appel-lee.

MARVIN, J., concurs with written reasons.

MARVIN, Judge,

concurring.

I concur in the result. The crucial question is when can the husband raise the alimony-fault issue. The better poliey, I believe, is to require that the husband raise this issue at least at or before the time the divorce is granted. This is what the husband attempted to do in Smith.

Otherwise, old fault wounds may be reopened, necessitating a review of the marital relationship at a time when the evidence is cold or suspect. If the husband is required to raise the issue at the time the divorce is granted and the wife later sues for alimony, then the only thing the court will have to look at will be the financial situation of the parties which exists when the amount of alimony is determined.

Smith held that it was error to refuse to allow the husband to show the wife’s fault to defeat her claims for alimony, even though he did not wish to contest her grounds for adultery divorce.

“During the trial, the defendant attempted to introduce evidence to prove the alleged fault on the part of his wife for the purpose of defeating her claim for alimony, even though he stated to the court that he did not wish to contest the divorce. The district judge sustained plaintiff’s objection to defendant’s evidence of the wife’s fault. The rationale of the judge’s ruling is that if the wife is granted a divorce on the grounds of adultery, the husband cannot contend she is guilty of fault barring alimony.” 216 So.2d at 392.

A decree of divorce in favor of one spouse is conclusive as to the fault of the other for alimony purposes, and if the alimony-fault issue is not raised in the divorce proceeding it should be too late to raise it afterward. That is my understanding of Thomason and Fulmer. Smith is not to the contrary.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Sammy W. NUGENT, Plaintiff-Appellee, v. U-HAUL COMPANY et al., Defendants-Appellants.
    No. 13788.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    Neblett, Führer & Broussard by Robert B. Neblett, Jr., Alexandria, for plaintiff-ap-pellee.
    Stafford, Randow, O’Neal & Smith by Larry A. Stewart, Alexandria, for Hanover Ins. Co., defendant-appellant.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for U-Haul Company, Inc., and Quennen Tomlison, defendants-appellants.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

In this damage suit, the issues presented on appeal relate only to quantum. Plaintiff, Sammy Nugent, was injured in a two vehicle accident on August 2,1976. He was one of three occupants of a pickup truck owned and driven by Marvin Tarver, which was involved in a collision with a rented U-Haul truck driven by Quennen Tomlison. Each of the three occupants brought separate actions against Tomlison, Hanover Insurance Company, Tarver’s uninsured motorist insurer, and U-Haul Company, Inc., which provided $5,000/10,000 liability insurance to Tomlison. Plaintiff and the other passenger also named Tarver and Hanover as Tarver’s liability insurer, as defendants. Third party demands were filed. The suits were consolidated for trial.

Plaintiff’s case was held open for the taking of additional medical testimony after he had more fully recovered, as was the other passenger’s case. After this testimony was submitted, the trial judge found that the accident was caused solely by the negligence of Tomlison and that the plaintiff was entitled to $80,000.00 for his pain, suffering and disability. Judgment was rendered in favor of plaintiff against Hanover and Tomlison in solido for $77,437.35 and against Tomlison and U-Haul Company in solido for $2,562.65, the amount remaining on U-Haul’s insurance coverage. The trial court also rendered judgment in favor of Hanover against Tomlison on its third party demand for $77,437.35.

Hanover appeals the quantum awarded to plaintiff who answers the appeal contending the trial judge erred in refusing to award him damages for loss of earnings and loss of earning capacity. Tomlison appeals the refusal of the trial court to mitigate the judgments against him because of his poverty. We modify the judgments to award plaintiff an additional $15,000 for loss of earnings and to reduce the judgments against Tomlison to $2,250.

Hanover contends the amount of the award for general damages to plaintiff is excessive. Plaintiff had congenital spondy-lolisthesis which had never given him trouble. The trial court found that because of the accident this asymptomatic condition became symptomatic resulting in plaintiff undergoing a spinal fusion.

Plaintiff was hospitalized for three days following the accident. He was placed in traction and given muscle relaxers for pain in his right leg and lower back region. His condition was diagnosed as “acute lumbo-sacral strain.” After his discharge, plaintiff went to his family physician who admitted him to the hospital for another five or six days. He diagnosed plaintiff’s condition as congenital spondylolisthesis which had become symptomatic because of the accident. Plaintiff was referred to an orthopedic specialist, Dr. Henderon who suggested a spinal fusion. However, plaintiff was unable to pay for it at the time and did not undergo the operation.

Subsequently, plaintiff was referred to Dr. Banks who also recommended a spinal fusion, to which plaintiff submitted in April, 1977. Plaintiff spent the eight months between the accident and the fusion in varying degrees of pain. Dr. Banks testified the only reason to undergo spinal fusion for spondylolisthesis is to relieve pain. Plaintiff was hospitalized, underwent a myelogram and had a bilateral mass fusion from the L-4 vertebra to the sacrum. His postoperative treatment included wearing a stiff corset for approximately five months. He suffered gradually diminishing pain in his leg and lower back and in his hip where the bone chips for the fusion were removed. At the time of Dr. Bank’s deposition, March 31, 1978, plaintiff was still experiencing slight pain in his hip.

Dr. Banks testified plaintiff was suffering a 35% disability of the body as a whole at the time, which would probably improve, resulting in a residual disability of 20% of the body as a whole. He testified the operation was successful and the fusion had healed solidly, and that plaintiff had made good progress. He testified that it would take at least another six months for plaintiff to reach maximum improvement.

The trial court awarded plaintiff $80,-000.00 “for his disability resulting from this accident and for his pain and suffering.” While the award is on the high side, it is within the trial judge’s much discretion. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) and Tarver v. U-Haul Company, Inc., et al., 362 So.2d 1157 (La.App. 2d Cir. 1978).

Plaintiff answered the appeal contending the trial judge erred in not awarding him damages for his loss of earnings and for his loss of earning capacity. The accident occurred on August 2, 1976 and plaintiff was expected to reach maximum improvement in early October of 1978. Thus, plaintiff was unable to work for over two years as a result of the accident.

Nugent was employed as a roughneck. Six weeks prior to the accident, while the rig was “stacked” for repairs, he suffered an accidental gunshot wound. He had fully recovered and was to return to work the day after the accident. His work history reveals fairly steady employment. He spent several years in each of a number of jobs. He had begun work as a roughneck several months before the accident. His tax returns for 1975 and 1976 indicate he made over $7,000 per year.

Plaintiff has proven he lost over two years’ wages as a result of the accident. This court believes that $15,000 will adequately compensate him for his lost wages. The judgment will be increased by this amount.

Plaintiff has not proven any permanent loss of earning capacity. At maximum improvement he will still have a 20% disability of the body as a whole. However, Dr. Banks’ testified plaintiff will be able to work and that it was possible he could return to his job as a roughneck. The only limitation on plaintiff’s ability to work is that he avoid compression type strains on the fusion. The evidence does not support a finding that plaintiff will not be able to engage in reasonable employment with an earning capacity comparable to that demonstrated prior to the accident. Therefore, the trial court’s failure to award damages for loss of future earning capacity was not erroneous.

Tomlison appeals the trial court’s refusal to mitigate the judgments against him because of his poverty. This issue was fully discussed in Tarver v. U-Haul Company, Inc., 362 So.2d 1157 (La.App. 2nd Cir. 1978) in which a $60,000 third party judgment against Tomlison in favor of Hanover was mitigated to $2,250. The remaining issue before this court is the extent to which this judgment should be mitigated in the instant case. Tomlison notes the court in Tarver found the added burden of the $2,250 judgment against him, as a practical matter, might render him bankrupt. He argues that since the Tarver judgment was mitigated to the maximum amount he could pay, this subsequent judgment should be mitigated to zero.

The judgments against Tomlison in this case should be mitigated for the reasons expressed in Tarver. The mitigated amount fixed in Tarver was not arrived at through any mathematically certain process. Whether that judgment has been paid or what Tomlison’s financial status was and is, subsequent to the consolidated trial, we do not know. The most reasonable approach is to mitigate this judgment to the same amount as in Tarver, or $2,250.

For the reasons assigned, the judgment in favor of plaintiff against Hanover is amended to increase the award by $15,000 to $92,437.35; the judgments in favor of plaintiff and Hanover against Tomlison are amended and reduced to $2,250; and, as modified, the judgments are affirmed. The costs of this appeal are assessed against Hanover.


author: BOLIN, Judge.

text:
    STATE of Louisiana In the Interest of HAYNES.
    No. 13789.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Taylor, Porter, Brooks & Phillips by G. Michael Pharis, Baton Rouge, for interve-nor-appellant.
    Hargrove, Guyton, Ramey & Barlow by Ray A. Barlow, Shreveport, for petitioner-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This adoption proceeding was instituted by the husband of the child’s mother. The natural father refused to consent to the adoption and it was granted over his opposition pursuant to La.R.S. 9:422.1, which permits adoption without the consent of a legitimate parent when that parent has failed to comply with a court order of child support for a period of one year. The natural father appeals and we affirm.

Appellant and the child’s mother were divorced in September 1974. That judgment granted custody of the child to the mother and ordered appellant to pay $400 per month child support, in addition to the child’s educational and medical expenses. The record indicates that all child support payments were made through August 1976, with the last regular payment being made in that month. One additional payment of $1200 was made on April 1, 1977. This suit was filed on December 31, 1977.

Appellee and the child’s mother were married in July 1976 and established a home in Shreveport where they have since lived with the child. Shortly following this marriage, the child, with the consent of her mother and appellee, informally changed her last name to that of appellee. Appellant testified when he learned the child was no longer using his last name he became angry and discontinued child support payments. He had been advised by his attorney that failure to pay for one year could result in his daughter being adopted without his consent. Consequently, he made the $1200 payment on April 1, 1977 to thwart this result. The parties stipulated that appellant was at all times in question financially able to pay the court ordered support.

The trial court held that although the $1200 payment was made within a year of the filing of this suit, the payments represented amounts due for the months of September through November of 1976, and consequently appellant had failed to comply with the court order of support for a period of one year. The court further noted that even if the $1200 payment were to be attributed to 1977 rather than 1976, it represented only one-fourth of the amount due for the calendar year 1977 and did not, under appellant’s circumstances, constitute a substantial compliance with the court order. Consequently, the adoption was granted despite appellant’s refusal to consent.

Appellant contends the trial court erred in the following respects: (1) in finding that he had failed to comply with the court order of support for a period of one year; (2) in finding that his failure to comply with the court order was not justified and excused under the circumstances, and (3) in granting the adoption without his consent in absence of a finding that he had demonstrated over a long period of time an attitude of total disregard of parental responsibility toward his child.

Appellant’s first specification of error is without merit. This claim is based on evidence of various payments made by appellant to the child’s mother prior to August 1976, the total of which appellant claims exceeds his child support liability through January 1, 1977. Many of these payments were made under that portion of the judgment ordering appellant to pay the educational and medical expenses of the child in addition to the $400 regular monthly payments. Therefore, these payments do not constitute an overpayment by appellant entitling him to credit toward his obligations of child support for any period after August 1976.

Appellant further claims the $1200 payment on April 1, 1977, made within a year of the filing of this suit, was sufficient to preclude the application of the statute. We do not agree. In the case of In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963), the Supreme Court made the following observation:

In construing the statute here under consideration which dispenses with consent in adoption proceedings under certain conditions, we are mindful of the above pronouncements, but we do not propose to give the statute such a strict interpretation as to make it ineffective and inoperative. To hold that under the statute there must be a complete refusal or failure to pay any sum whatever for one year before consent would be dispensed with would be to disregard completely the obligation which a parent has to provide support and maintenance for his child. Such a holding would permit an unworthy parent, in complete disregard of his obligation to his child, to prevent an adoption which might be to the best interest of the child by making a token payment of a nominal sum once each year insufficient to provide for maintenance and support. Such a strict construction would lead to absurd consequences and make the statute meaningless and ineffective.

Furthermore, in the case of In Re Lafitte, 247 La. 856, 174 So.2d 804 (1965), the court stressed this language from the Ackenhau-sen case and added the following comment:

We think, as did our learned brother below, that “If it were possible to pay up an arrearage in the twelfth month of each year and thereby defeat each effort of the adoptive step-parent to adopt children he is attempting to be a father to, the intent of the legislature in adopting R.S. 9:422.1 would surely be defeated.” (The emphasis has been supplied.)

These two cases make it clear that an arbitrary refusal to comply with the spirit of a support order, such as the one in this ease, will result in that parent’s consent being unnecessary for an adoption. Appellant admits he was financially able to pay during the entire time in question and was well aware of his continuing obligation to pay the monthly support. In spite of this, appellant made only one payment during the 16 month period prior to the filing of this suit, representing less than one-fourth of his total obligation for that period. Appellant’s own testimony clearly indicates this payment was a direct attempt to circumvent the operation of the adoption statute. To allow this to happen would be to completely frustrate the statute’s purpose.

Appellant’s second specification of error is also without merit. He contends the child’s mother refused to let him visit the child and that he was upset and confused over the child’s informal name change. He claims these factors constitute just cause for his failure to comply with the support order and therefore his non-compliance is excused. -

The evidence does not support these contentions. Appellant only attempted to visit the child twice during 1977, and was allowed to do so on each occasion. Furthermore, the evidence indicates appellant’s refusal to pay was deliberate rather than an involuntary manifestation of his emotional state.

In appellant’s third specification of error he contends that in order for the statute to apply, the court must not only find a failure to comply with a court order of support for a period of one year but must also find the delinquent parent demonstrated a prolonged attitude of total disregard of his responsibility to his child.

We do not agree. All the cases cited by appellant to support this proposition deal with situations where the failure to pay support was due to circumstances beyond the parent’s control. We have already held that appellant’s failure to pay was not due to circumstances beyond his control. The reasoning behind this rule was stated by the court in the case of In Re Adoption of Fouts, 254 So.2d 649 (La.App. 1st Cir. 1971). There it was noted that “courts cannot callously overlook the rights of the natural parent who has made reasonable efforts to fulfill his parental obligations.” We do not find appellant’s actions to be a reasonable effort to fulfill his obligations.

The judgment is affirmed at appellant’s cost.

      . § 422.1
      If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      (1)The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
      (2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      (3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.


author: PRICE, Judge.

text:
    Woodrow DILLEY and Al Johnson, Plaintiffs-Appellees, v. Minnie CAIN, Defendant-Appellant.
    No. 13791.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.
    Michael E. Kramer, Winnsboro, for defendant-appellant.
    Chet D. Traylor, Winnsboro, for plaintiffs-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

The plaintiffs in this case are two carpenters who performed remodeling and renovation work on the interior of a house for defendant.

Plaintiffs sued for the sum of $1,700 based on allegations that defendant owed each the sum of $8.00 per hour for a total of 104V2 hours, plus $28.00 for material furnished. Plaintiffs also seek penalties in the sum of $1,440 under La.R.S. 23:632. Defendant’s answer admits the employment, but contends plaintiffs were not to be paid until completion of the job, and that plaintiffs abandoned the work and refused to return. Defendant reconvened for damages in the sum of $10,000 for plaintiff’s alleged faulty and inferior work.

The trial court in written reasons for judgment found plaintiffs were hired by the hour to do work for defendant in the renovation of the old house; that the work was performed under the supervision of defendant who visited the job several times daily; and that had the quality of the work been inferior and unsatisfactory to defendant, she could have terminated the plaintiffs’ employment at any time.

The court therefore held there was no justification in defendant’s refusing to pay the wages owed plaintiffs when they refused to continue working for defendant following a disagreement.

Judgment was rendered for plaintiffs in the amount sued for, $1,700, less a credit of $250 for accidental damage to a bathroom fixture admittedly caused by plaintiffs. Defendant’s reconventional demand for damages was rejected. The court also awarded penalties in the sum of $1,440 as prayed for.

The record supports the findings of the trial judge, and we affirm the judgment for the reasons assigned by the trial court which are adopted as the findings of this court.

The record shows that the house which was being remodeled by defendant, a realtor, was an old house in very poor condition. Plaintiffs performed some work on the house for defendant in March 1977 for which they were paid $928. She requested their return to do more work in June and July which is the work for which wages are claimed in this suit.

While defendant testified that she was dissatisfied with numerous phases of the work performed by plaintiffs, a review of the list of work actually done by them, which was prepared by plaintiff, Dilley, shows that defendant’s complaints were directed at only a minor portion of the work performed. Defendant’s complaints related more to work yet to be completed which probably would have been finished' had plaintiffs remained on the job.

The testimony of another carpenter who completed most of the renovation work after plaintiffs left the job shows that none of the $450 paid to him was to correct work previously done by plaintiffs.

Defendant has not shown that plaintiffs breached any contractual agreement to perform a defined amount of work or that the work actually done by them was below the standard of workmanship reasonably to be expected in view of the condition of the residence.

The trial court awarded penalties under La.R.S. 23:631-632 on finding the defendant was not in good faith in refusing to pay within twenty-four hours of the time the wages were demanded of her. The court rejected plaintiffs’ claim for attorney fees because there was no prayer for this relief. Plaintiffs have not answered the appeal asking for any modification or increase in the judgment.

Defendant contends the penalty provision of La.R.S. 23:631 does not apply because plaintiffs were employed by the hour rather by the day, week, or month as the statute then in effect required. (La. R.S. 23:631 was amended by Act 317 of 1977 to clarify this ambiguity created by several court decisions.) We recognize the decisions in Gros v. Leblanc, 304 So.2d 49 (La. App. 1st Cir. 1974) and Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La. App. 2d Cir. 1972) have adopted such an interpretation. We disagree with the interpretation placed on the statute in those decisions, however, and find the more logical construction is that set forth in the dissent to the majority view in Gros v. Leblanc, supra, as follows:

As may be seen, the statute refers to “laborers or employees of any kind whatever.” The statute goes on to mention employment by the day, week or month. In my opinion, the reference to employment by the “day, week or month” is illustrative rather than exclusive. I reach this conclusion because the statute first refers to employees of “any kind whatever.”
In reaching the opposite conclusion the majority relied principally on the decisions of Gatti v. Southern Research, Inc., 271 So.2d 376 (2nd Cir. 1972) and Dunn v. Bessie F. Hiern School, Inc., 209 So.2d 538 (4th Cir. 1968) Writ refused, 252 La. 469, 211 So.2d 331.
******
In my opinion it was not necessary for the court in either of the above cases to limit the application of the statute to employees who are employed “by the day, week or month.”
It is common knowledge that many employees, including most in the construction trades, are paid on an hourly basis. Under the majority opinion these employees would not be afforded protection under the statute.

We conclude the employment at an hourly rate of pay does not preclude plaintiffs from the protection of the statute.

Defendant makes no assignment of error in regard to the computation of the penalties by the trial court.

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

      . La.R.S. 23:631
      It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharge or resigned laborer or employee at the place where the employee or laborer is usually paid.


text:
    David James WEBB, Plaintiff-Appellant, v. TURBEX CONSTRUCTION COMPANY et al., Defendants-Appellees.
    No. 13793.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.

      James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    Donald R. Miller, Shreveport, for defendant-appellee, Turbex Construction Co.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appel-lee, Arkansas Louisiana Gas Co.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

David James Webb has appealed the judgment rejecting his claim against Tur-bex Construction Company and Arkansas Louisiana Gas Company for benefits under the workmen’s compensation statute.

The issues presented are whether the trial court committed manifest error in finding that plaintiff had not proven his disability resulted from an accidental injury while in the scope of his employment with Tur-bex, and secondly, if this issue is resolved favorably to plaintiff, is Arkla liable as a statutory employer of plaintiff.

We reverse the judgment denying benefits to plaintiff as against Turbex and affirm the judgment insofar as it dismissed the demands against Arkla.

The record shows that on July 5, 1977, plaintiff was employed as a laborer by Tur-bex in the performance of a contract to lay gas lines for Arkla in the city of Shreveport. In the early afternoon on this date, the Turbex foreman, Jerry Hislope, took plaintiff and another crew member, Roy L. Neighbors, Jr., to the residence of an Arkla official, Edward E. Bagley, to assist in the enlargement of a concrete patio. Plaintiff and Neighbors were instructed to wheelbarrow wet concrete mix from the front curb to the rear of the residence and to dump it into the forms which had been set for the patio construction. Plaintiff contends that while lifting a wheelbarrow to dump a load of the concrete mix, he felt a sudden pain in his back which caused him to spill some of the concrete outside of the forms on the grass. Plaintiff further contends he told his fellow worker, Neighbors, on the return trip to the street curb that his back was hurting. Plaintiff also contends he informed the Turbex foreman, Hislope, that he had hurt his back when Hislope came to pick plaintiff up after completion of the work.

The trial court, in its reasons for rejecting plaintiff’s demands, discredited the testimony of plaintiff as to the happening of the alleged accident on the court’s recollection that none of the persons who were present and who testified could recall seeing plaintiff spill a portion of a load of concrete other than his co-worker, Neighbors. The court did not have the transcript of evidence available at the time its opinion was rendered and apparently overlooked the testimony of Bagley, at whose residence the work was being done. Bagley, when asked under cross-examination if he had seen plaintiff spill a load of concrete, testified as follows:

Yes sir, I was on the patio and he was near the form and when he dumped the concrete out, some got on the grass — the biggest part went into the forms.

The trial court also relied on the testimony of the Turbex foreman, Hislope, that plaintiff told him the day following the alleged accident that an injury he had received while working for Bill Hanna Ford was causing him back pain. Plaintiff denied making this statement to Hislope. The evidence shows plaintiff had not worked at Bill Hanna Ford since July 14, 1976, and that although he had visited a company physician for a strained muscle in his back in March 1976, this injury did not cause him to lose any time from work, and he did not experience any further symptoms after two or three days. No claim for compensation was made in regard to the incident. Plaintiff’s supervisor at Bill Hanna Ford testified plaintiff was a good worker and he was able to perform his work without any indication of physical disability the entire time he was employed, and he was not even aware plaintiff had suffered an injury.

The evidence further shows that plaintiff began working for Turbex on June 14,1977, doing manual labor requiring considerable lifting. There is no indication that he was not able to perform his work without complaint of back pain prior to the date of July 5, 1977. It is significant he was unable to work without experiencing pain on reporting for work the date of July 6, which was noticed by Hislope.

Plaintiff did not work July 7 and attempted to see a doctor at Barksdale Air Force Base. (Plaintiff was eligible for treatment at the air base as the nineteen-year-old son of a retired air force member.) He was unable to obtain an appointment until the following week. On Friday, July 8, plaintiff reported to work and at the end of the day was given a termination notice along with his weekly paycheck.

On Monday, July 11, plaintiff consulted Dr. Kenneth Murdock at Barksdale in regard to the continued pain in his back and gave a history of having injured his back while lifting cement. He was referred to an orthopedic surgeon at the base hospital, Dr. Ernesto Nieto, who also took a history. Dr. Nieto’s medical records reflected that plaintiff stated he injured his back while lifting cement bags. We do not consider the reference to cement bags rather than a wheelbarrow of concrete mix to be a contradiction of any significance as there is no evidence plaintiff had worked in relation to cement at any other time than the afternoon of July 5, when he contends the injury occurred.

Although we are reluctant to reverse a trial court on a question of fact, we consider the preponderance of the evidence in the instant matter shows plaintiff did sustain the alleged injury and resulting disability during his employment with Turbex on July 5, 1977.

Plaintiff’s testimony is in all respects corroborated by his fellow worker, Neighbors. Although Neighbors was an acquaintance who also began working at Turbex at the same time as plaintiff, there is nothing to show his testimony lacks credibility. Plaintiff’s testimony is further supported by the admission of Bagley that he saw the spillage of concrete; by the coincidence of the commencement of back pain only after performing the very strenuous work of hauling concrete mix in a large construction-type wheelbarrow on the alleged date of injury; and by the history given to the medical doctors the week following the alleged injury.

Although it is true that none of the other persons other than Bagley, who were assisting with the work on the patio could recall seeing plaintiff spill any concrete or scolding him for wasting the cement as contended by plaintiff, this is understandable because of the time which elapsed before trial and the conditions which existed on the afternoon of the alleged incident. The evidence shows they were working at a fast pace because of threatening rain and the fact that the wet concrete was hardening very quickly on this hot July afternoon. This is particularly demonstrated by the fact that one of the cement finishers who testified could not even recognize plaintiff as being one of the persons working on that afternoon.

The testimony of Hislope, which is contradictory to that of plaintiff, does not overcome the strong presumption created by the evidence showing plaintiff able to do heavy work prior to July 5, and immediately thereafter unable to do so without substantial pain.

For these reasons we find plaintiff sustained his burden of proving the accidental injury to his back while employed by Turbex, and that the trial court was manifestly in error in concluding otherwise.

The circumstances shown do not establish that plaintiff was a statutory employee of Arkla. La.R.S. 23:1061 provides in pertinent part:

Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; . . . . [emphasis added]

It is essential that for the statutory employee relationship to exist between Arkla and plaintiff it must be shown that the work being performed by plaintiff was a part of the trade, business, or occupation of Arkla. The construction work on the patio of a private residence of an Arkla employee or official does not meet this test. The evidence clearly shows the work was for the personal benefit of Edward E. Bagley and had no connection with the trade or business of Arkla and was not related to the work for which Arkla had contracted with Turbex to perform. Therefore, plaintiff’s demands against Arkla were properly rejected.

The medical evidence in the record shows plaintiff’s continued complaints of pain when performing manual labor were probably caused by a herniated lumbar disc at the L5-S1 level on the right. The medical reports of Dr. Carl Goodman, an orthopedic surgeon who last treated plaintiff, were introduced into evidence by agreement in lieu of taking his testimony. The latest report, dated January 6, 1978, summarizes plaintiff’s physical condition and resulting disability as follows:

This young man returns to my office because of persistent pain in the back and right leg. He says he has been unable to get a job or work since his last visit in August. He continues to have marked disability in the back and right leg with persistent numbness in the lateral border of the right foot and some instability in the right knee. He says that the right knee gives way 3-4 times daily. No swelling or pain in the knee. His back and right leg pain are eccentuated by hard cough or sneeze. He denies any GU or GI symptoms.
******
It is my impression from the above that this man probably has an extruded L5-S1 lumbar disc on the right and will probably need surgery to fully recover. A myelogram was advised in the near future. This man definitely remains disabled from performing any type of physical work and probably will never be rehabilitated until he undergoes surgery.

Plaintiff testified that he obtained employment with U-Haul Company after his discharge from Turbex, but could not perform the work because of extensive pain and was forced to quit after a week. He thereafter obtained disability payments under Social Security and has enrolled at the Louisiana Vocational Technical School in Shreveport studying to become a barber.

Turbex has offered no evidence to rebut the medical report of Dr. Goodman or plaintiff’s testimony that he remains disabled from performing any type of physical work until such time as corrective surgery is performed. Plaintiff testified he is willing to undergo the recommended myelogram and possible surgery, but has not had it done because of financial inability.

The foregoing evidence, standing uncontradicted, shows plaintiff was at the time of trial totally disabled to perform any gainful employment and entitled to the benefits provided by La.R.S. 23:1221(2).

Plaintiff has urged a claim for penalties and attorney fees. The circumstances shown, however, do not indicate that the failure to pay the amount of the claim due was arbitrary, capricious, or without probable cause as is required under La.R.S. 23:1201.2 to warrant such an award as the evidence supports the existence of a valid dispute between the claimant and the defendant concerning the cause of claimant’s disability, and therefore, no penalties and attorney fees can be assessed. See Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3d Cir. 1975).

For the reasons assigned, the judgment of the trial court is affirmed as to defendant, Arkansas Louisiana Gas Company. Further the judgment of the trial court is reversed as to defendant, Turbex Construction Company, and accordingly there is judgment in favor of plaintiff, David James Webb, and against Turbex Construction Company for compensation at the rate of $80.00 per week [66% percent times $120 ($3.00 per hour wage times 40 hour work week)], beginning the 5th of July 1977, and continuing for the period of such disability with interest at the rate of 7 percent per annum on each past due installment from due date until paid, and it is further ordered that all accrued amounts with interest be paid in a lump' sum; that plaintiff have judgment for all necessary past medical expenses; that plaintiff’s right to recover all necessary future medical expenses be reserved unto him; that plaintiff’s claim for penalties and attorney fees be rejected; and that all costs of this appeal are assessed to defendant, Turbex Construction Company.


author: JONES, Judge.

text:
    Jack A. COLTHARP, Plaintiff-Appellee, v. Barbara H. COLTHARP, Defendant-Appellant.
    No. 13796.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.
    Writ Refused May 4, 1979.

      Guerriero & Placke by Allen L. Placke, Monroe, for defendant-appellant.
    Lancaster, Baxter & Seale by Michael Lancaster, Jr., Tallulah, for plaintiff-appel-lee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Appellant, mother of two sons age 6 and 8, appeals a judgment continuing the custody of the two boys with their father, appellant’s former husband. We affirm.

Appellant abandoned the matrimonial domicile in rural Madison Parish, her husband and her two sons in April 1977. Ap-pellee obtained from the appellant a separation of bed and board and custody of the two sons in a default judgment rendered May 26, 1977. On May 30, 1978 appellee sued appellant for a final divorce and for permanent custody of his two sons and in these proceedings, appellant reconvened for custody of her two sons. Appellee was granted a divorce on July 18th, at which time the custody hearing was postponed until August 11th, on which date appellee was awarded the permanent custody of his two sons.

At the time of the custody hearing, the two boys had been living with their father for approximately 16 months and they were well-adjusted, disciplined, happy children for whom appellee provided a comfortable rural home, food and clothing, religious instruction and recreational activities in the form of little league baseball and fishing trips. The boys and their father enjoyed a good relationship with each other.

Appellee, immediately after the divorce was rendered, married his girl friend who had been living with him and his two sons for the preceding 10 months. Appellee’s present wife adequately supervises and cares for the boys and enjoys a satisfactory relationship with them.

Appellant had a hysterectomy a short time prior to her separation from her family, but had sufficiently recuperated from this surgery prior to the separation to be able to drive to her employment as a cashier in a store in an adjacent community. Prior to the hysterectomy, she had been in poor health, suffered from depression and had attempted suicide. Upon her separation from her family, she moved to Ouachita Parish where within a month she secured employment. She visited with her children frequently during the intervening year, but made no attempt to regain their custody until the suit for divorce was filed by her husband. During this period between the separation and the custody hearing, appellant lived in 6 different apartments and held 5 different jobs. She married a draftsman a few days before the custody hearing and she and her husband testified that she no longer needed to work.

Appellant’s assignments of error are: (1) the trial court applied the double burden rule of proof to appellant’s change of custody demand when the separation of bed and board custody award was not a considered decree (2) the trial court erred in finding plaintiff had not established that she was capable of providing a proper environment and in failing to grant custody of the children to appellant and (3) the trial court erred in failing to find the appellee morally unfit and unsuitable for custody of the children.

The double burden rule as enunciated in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) and Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), provides:

When the trial court has made a considered decree of permanent custody the party seeking the change must prove the continuation of the present custody is deleterious to the children to justify removing them from the environment to which they are accustomed and further must show that the new environment is suitable.

The trial court gave the following reasons for leaving the custody of the two boys with their father:

“I am going to let the children stay where they are. I don’t think you have shown me enough reason to change and I think that’s what the law still is that they’re in a stable environment. She hasn’t proven a stable environment. She may have gone into one but that I don’t know and I think it’s bad switching the children around. She let them stay for over a year and then just came within on a reconventional demand to get them.”

We view the reasons of the trial judge to establish that she was applying the rule that it is to the best interest of the children to leave them in a stable environment to which they have become accustomed, and that it is not generally in their best interest to change the custody in absence of some serious reason to do so. This approach is in line with the rule that:

“The paramount consideration in determining to whom custody should be granted is always the welfare of the children.”

Fulco v. Fulco, supra, which jurisprudential rule is now clearly expressed in C.C. Article 157 following its 1977 amendment wherein the first paragraph reads as follows:

“In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife in accordance with the best interest of the child or children.”

In the decision of Bankston v. Bankston, 355 So.2d 58 (La.App. 2d Cir. 1978) we retained custody in a father who had prior thereto de facto custody for a considerable length of time, but who did not have custody by a considered decree, and therein said:

“Our law recognizes that changes in custody upset the stable environment of children and for that reason should not be undertaken lightly.” p. 62.

In that case in rejecting a mother’s demand for a change of custody we further said:

“While the father here has had actual custody rather than custody by a considered decree, the traumatic effect of changing the stable environment and wholesome lifestyle of this child is not going to be in the slightest diminished because the child has not been in the custody of his father under a considered decree.” p. 62.

The trial court stressed the fact that the appellant was just going into a situation which appeared to be stable and by stressing this point, the trial court was pointing out that numerous changes by appellant in the preceding year in places of residence and places of employment were not indicative of a stable situation which is essential to the welfare of children.

We consider this assignment of error without merit. The trial judge properly evaluated the stability of the existing satisfactory custodial situation of the two young boys and considered it to be in their best interest to leave the custody unchanged rather than to uproot them from their stable situation in their country home with their father and step-mother and place them with their mother who had just moved into an apartment with her new husband.

Appellant urges the trial court erred in failing to apply the maternal preference rule and based upon it award her the children. This rule as expressed in Fulco v. Fulco, supra, is as follows:

“The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable . . .”
p. 605.

We find the maternal preference rule inapplicable because it was designed to apply to initial custody determinations following the separation of the spouses. The underlying basis for the rule recognizes that principally the mother exercised the custodial functions over the child of tender age in the normal household where the child lived with his mother and father. The rule was designed to continue the custody of these young children with the mother after the separation of the spouses because it was to the best interest of these children that they remain subject to the direct custody and control of their mother who had cared for them prior to the separation. It may be that C.C. Article 157, supra, could be construed to have legislatively eliminated the maternal preference rule since it provides that the child should be awarded to the husband or wife in accordance with the best interest of the children. The amendment to the Article probably makes no change in the law since the maternal preference rule was always based upon the notion that it was to the best interest of a child of young and tender age to be placed in the custody of his mother at the time of the initial custody determination. The rule has no application to this situation where the father has been exercising actual custody over these two young boys for 16 months prior to this custody hearing, and under these circumstances, the trial court was not required to give appellant any preference or presume that she was entitled to custody of these children. Brackman v. Brackman, 322 So.2d 314 (La.App. 2d Cir. 1975).

Appellant’s last assignment of error is that the trial court should have found the father morally unfit and unsuitable for the custody of the children. This assignment of error is based upon the appellee having resided in the same home with his present wife and his two children for some 10 months without being married to her. Ap-pellee testified he needed the assistance of his girl friend to help him care for the two children while he worked and that he intended to marry her as soon as he could after his divorce from appellant. While this conduct cannot be condoned, the father has married the lady, they are providing the children with a good home and it is not shown that either the father or his present wife is unfit.

In the decision of Monsour v. Monsour, 339 So.2d 488 (La.App. 2d Cir. 1976) a mother lived with her boy friend for four months in the apartment with her young son and she married her boy friend after the father of the child filed suit for custody. The supreme court reversed this court which had removed the custody of the boy from the mother, based on her immorality, and placed it with the father. Monsour v. Monsour, 347 So.2d 203 (La.1977). The supreme court held the mother had reformed by marrying her paramour and the trial court was correct in retaining custody with her. The trial court in the instant case, no doubt considered this father had purged himself of immorality by marrying his girl friend as soon as he secured the divorce from appellant.

The court in Monsour v. Monsour, supra, stressed the rule that a trial court’s determination should not be disturbed in absence of a clear showing of abuse:

[the trial judge] “is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof.” p. 205.

We find no abuse of the trial court’s discretion as the record fully supports the trial court’s determination that it is to the best interest of appellant’s children that they remain in the custody of their father.

AFFIRMED at appellant’s cost.


text:
    Andrew M. TURNER, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendant and Appellees.
    No. 13798.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    Booth, Lockard, Jack, Pleasant & LeSage by Fred H. Sutherland, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for Fireman’s Fund interve-nor-appellee.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for Safeco Ins., defendant-appellee.

      Nelson & Achee by Roland J. Achee, Shreveport, for Neymond Heable, et al., defendants-appellees.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for Associated In-demn., defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff, Andrew M. Turner, brings this action for damages sustained in an automobile collision on September 21, 1976, against defendants, Neymond Heable, driver of the other automobile, Allstate Insurance Company, liability insurer of Heable, Safeco Insurance Company of America, plaintiff’s personal insurer for underinsured motorist’s coverage, and Associated Indemnity Corporation, plaintiff’s employer’s insurance carrier for underinsured motorist’s coverage. From a summary judgment in favor of Associated Indemnity Corporation, plaintiff appeals.

Plaintiff was operating a 1968 Chevrolet StepVan owned by his employer, American Linen Supply Services, Inc., in the course of his employment on September 21, 1976 when he alleges defendant, Heable, failed to yield to a red traffic signal as Heable proceeded easterly on Texas Street and negligently ran into plaintiff who was traveling north on Spring Street, at the intersection of Spring and Texas Streets. Plaintiff alleges the liability insurance policy of Allstate with personal injury limits of $10,-000 is insufficient to cover plaintiff’s personal injuries and medical expenses, thus Associated Indemnity Corporation, who had issued a liability insurance policy to plaintiff’s employer, which included uninsured and underinsured motorist’s coverage, is liable to plaintiff for that portion of his damages which exceed the policy limits of Allstate.

Associated Indemnity Corporation answered that the policy issued to Atur, Inc., d/b/a American Linen Service, Inc., did not provide uninsured or underinsured motorist coverage on the vehicle operated by plaintiff at the time of the accident. Associated Indemnity Corporation filed a motion for summary judgment attaching Atur, Inc.’s (American Linen) policy no. LP2409994 in force from June 17, 1976 to June 17, 1977, and Atur, Inc.’s policy no. LP2331185 in force from June 17, 1975 to June 17, 1976 and the affidavit of Harold L. Wilmes, president of Atur Services, Inc.

The documents show an endorsement forming part of and originally attached to policy no. LP2331185 dated June 17, 1975 containing a written rejection of uninsured motorist coverage for commercial units only by Harold L. Wilmes, for the policy in force from June 17, 1975 to June 17, 1976. No written rejection of uninsured motorist’s coverage formed part of or was attached to the policy no. LP2409994, nor did the policy contain a written reference to a rejection of such coverage in the previous policy. This policy in force from June 17, 1976 to June 17, 1977 did contain the following: a declaration page showing a $104 premium was paid for uninsured motorist insurance, the page titled “Coverage, Part-Uninsured Motorists Insurance” showed uninsured motorist insurance was carried for “any private passenger automobile owned by the named insured”; the page titled “Schedule of Automobile and Coverage” showed premiums totalling $104 were paid for uninsured motorist coverage on four automobiles— Buick Appollo, Gremlin, Buick LeSabre and Buick Electra; application form attached to and forming part of the policy stating number LP2409994 was a renewal of policy no. LP2331185. The affidavit of Harold L. Wilmes stated he had been president of Atur Services, Inc. since June 17, 1975 and he signed the Notice of Rejection of Uninsured Motorist Coverage for commercial vehicles dated June 17, 1975 which formed part of and was attached to the policy in force from June 17, 1975 to June 17, 1976.

Plaintiff filed an opposition to the motion for summary judgment contending policy no. LP2409994 contained no written rejection of uninsured motorist coverage nor any reference to a previous written rejection which deprived Associated Indemnity of the right to assert there was no uninsured motorist coverage as a defense for the reason LSA-R.S. 22:628 provides any modification of coverage of any contract of insurance must be “in writing and made a part of the policy”.

The trial judge in his reasons for summary judgment found the specific provisions of LSA-R.S. 22:1406(D)(l)(a) referring to uninsured motorist insurance controlled in the conflict with LSA-R.S. 22:628 a general statute referring to all types of insurance contracts. The trial court held: “. . . the uninsured motorist statute was amended by Act 494 of 1975. The amendment provides that such coverage need not be offered or provided in a renewal or substitute policy where the named insured has rejected the coverage in a former policy.

The face of the policy involved herein shows that uninsured motorist coverage was not provided on commercial vehicles, as did the attached form number 800-802-8-74. We believe the statute is clear in not requiring the coverage to be afforded on renewal policies and that once coverage has been rejected, the insurer may produce evidence of such rejection which rejection was made at the time of issuance of the former policy.”

The trial court also found Act 438 of 1977 which amended LSA-R.S. 22:1406(D)(l)(a) to provide a written rejection of uninsured motorist coverage need not be physically attached to a renewal policy was procedural and should be applied retroactively.

Plaintiff assigns as error the following trial court determinations: (1) the initial written rejection of uninsured motorist coverage or reference thereto does not have to form part of or be physically attached to a renewal policy to serve as evidence of no uninsured motorist coverage in the policy, and (2) Act 438 of 1977 amending LSA-R.S. 22:1406(D) is procedural and has retroactive application.

LSA-R.S. 22:1406(D)(l)(a) as amended by Act 494 of 1975 [italicized] the pertinent statute at the time of the accident on September 21, 1976 read as follows: “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.

(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury, liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.”

Defendant contends the clear terms of Act 494 of 1975 provide no uninsured motorist coverage need be offered in or supplemental to a renewal policy when the insured has rejected the coverage in a previous policy. Defendant contends it follows if no uninsured motorist coverage need be offered, the previous rejection or reference to the previous rejection is not required to be included in or attached to the renewal policy.

Plaintiff contends LSA-R.S. 22:1406(D)(l)(a) as amended by Act 494 of 1975 must be construed in light of LSA-R.S. 22:628 which provided at the time the policy sued upon was issued:

“No agreement in conflict with, modifying, or extending the coverage of insurance shall be valid unless in writing and made part of the policy . . . ”

Plaintiff contends the previous rejection or a reference to it had to physically form part of the renewal policy in force at the time of the accident for the rejection of uninsured motorist insurance to be valid. Plaintiff relies on Spain v. Travelers Insurance Co., 332 So.2d 827 (La.1976) for the proposition an exclusion must physically form part of or be attached to an insurance policy for an insurer to have a right to defend on the ground such coverage was excluded from the policy. In Spain, plaintiff was excluded from coverage by the terms of the basic policy of her employer but was allowed to recover from her employer’s excess policy insurer because the excess policy merely provided “the provisions of the immediate underlying policy are incorporated as a part of this policy” without physically incorporating the terms or attaching a copy of the basic underlying policy to the excess policy as required by LSA-R.S. 22:628.

In Myers v. Thibeaux, 365 So.2d 266 (La. App. 3d Cir. 1978) the insured initially rejected uninsured motorist coverage in a 1962 policy and the court held no notice of such rejection need be physically attached to or referred to in a renewal policy delivered after the effective date of Act 494 of 1975 in order for uninsured motorist coverage to be excluded from the renewal policy. The court stated:

“Since Myers initially rejected uninsured motorist coverage in 1962, and since the last insurance delivered to him by State Farm (a renewal or substitute for the coverage provided in 1962) was on October 23, 1975, we conclude that the very terms of the uninsured motorist statute as amended, and as quoted above, bar his recovery.” id p. 268

We agree with the trial court that LSA-R.S. 22:628 is not the controlling statute in this case. LSA-R.S. 22:628 is a general statute controlling provisions of insurance contracts whereas LSA-R.S. 22:1406(D)(l)(a), a part of the uninsured motorist’s statute, contains the specific provision in unambiguous language that uninsured motorist coverage does not have to be offered in a renewal policy when the insured has rejected the coverage in a policy previously issued to him by the same insurer. See Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975); Esteve v. Allstate Insurance Co., 351 So.2d 117 (La.1977).

Because we have determined that summary judgment was properly rendered upon the 1975 amendment to the uninsured motorist’s act, we find it unnecessary to consider whether Act 438 of 1977 is only procedural and therefore subject to retroactive application.

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

      . LSA-R.S. 22:628 was amended in 1977 to allow incorporation by reference to policies in effect on July 10, 1977 or issued thereafter.

      . Act 438 of 1977 (italicized) amended R.S. 22:1406(D)(l)(a) to read: “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”


text:
    Janie McClanahan EARNEST, Plaintiff-Appellant, v. CALDWELL PARISH SCHOOL BOARD, Defendant-Appellee, Clarice D. Kenney, Intervenor-Appellee.
    No. 13801.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiff-appellant.
    John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, for intervenor-appellee, Clarice D. Kenney.
    Don C. Burns, Dist. Atty., Columbia, for defendant-appellee Caldwell Parish School Board.

      Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Plaintiff, an applicant for the position of elementary school supervisor, has appealed the judgment of the trial court refusing to grant her injunctive relief to prevent the Caldwell Parish School Board from considering the application of another applicant, Clarice Kenney, for this position and rejecting her demand to be declared selected for the appointment by vote of the school board.

The issue presented is whether the board could properly consider the application of Mrs. Kenney who did not receive her certification of qualification by the Louisiana Department of Education until after the advertised period for receiving applications by the board expired.

Plaintiff and Mrs. Kenney were among the applicants who responded to a notice published by the school board that applications would be received through April 17, 1978. Plaintiff was certified at the time of filing her application. At a meeting on April 18, 1978, the board considered the applications and a vote was taken resulting in a tie between plaintiff and Mrs. Kenney, who each received five votes. Therefore, no action was taken to fill the position at the meeting. At the subsequent meetings of May 2 and May 16, 1978, a tie vote between these two applicants continued to prevent the selection of either applicant for the position.

On May 19, 1978, plaintiff filed this action to enjoin the school board from considering the application of Mrs. Kenney and to have herself declared elected as a result of the votes received by her at the prior board meetings. She contends the votes cast for Mrs. Kenney were null because she was not at that time properly certified as required by the board’s resolution authorizing the method of filling the anticipated vacancy and as required by the regulations of the Louisiana Department of Education. Mrs. Kenney received her certification on May 23, 1978, and the following day, May 24, intervened in this action asking that her right to be considered for the position be maintained.

The school board and Mrs. Kenney filed exceptions of no right of action, mootness, and nonjoinder of indispensable parties. These exceptions, which, by agreement, were considered with the merits, were sustained and plaintiff’s demands were dismissed. The result reached by the trial court is correct and we affirm the judgment.

We pretermit any discussion of plaintiff’s complaints on appeal relating to the procedural insufficiencies or irregularities because of our view on the merits of this controversy.

We do not find that the board’s acceptance and consideration of intervenor’s application was contrary to its own resolutions, policies, or otherwise contrary to law.

Plaintiff’s primary argument is that since the school board saw fit to advertise for applications in filling the anticipated vacancy, it is bound to follow the policies of the board as stated in its advertisement to furnish proof of proper certification contemporaneously with making the application. The notice published by the school board provided that applicants “furnish their certification documents, transcripts, and other qualifying information.” We do not construe the language of the advertisement to specify that the qualifying documents must necessarily be furnished at the time of filing the application. It simply places the responsibility on the applicant rather than the school board administrative personnel to obtain this information for the board.

As further evidence that the theory urged by plaintiff was not the intent of the school board, we refer to the resolution adopted at the April 18, 1978, meeting as follows:

Be it resolved by the Caldwell Parish School Board that all applicants for School Board employment be fully certified before applicant assumes the position or the beginning date of employment. Be it further resolved by the Caldwell Parish School Board that all resolutions or parts of resolutions in conflict herewith are hereby repealed, [emphasis added].

Plaintiff further relies on a regulation of the Louisiana Department of Education which provides that a person who lacks proper certification from this department shall not be “legally eligible for administrative, supervisory, teaching, or other professional services in the public schools of this state.” Department of Education Bulletin 746 — Louisiana Standards for State Certification of School Personnel.

The fallacy of plaintiff’s argument lies in the fact that the board did not make any appointment for this position at any of its meetings prior to the date of trial of this matter. The record also shows the position was not to become available until July 1, 1978, upon the promotion of the person then serving in this capacity. The acceptance and consideration of intervenor’s application is not violative of this regulation of the Louisiana Department of Education.

La.R.S. 17:84 grants sole authority to parish school boards to select and employ supervisory personnel and La.R.S. 17:81 permits school boards to adopt their own rules and regulations to carry out their governmental functions provided the policies adopted are not inconsistent with law or the regulations of the Louisiana Department of Education. The courts should not interfere with a school board’s management unless there is a clear showing of abuse of the authority granted to the board under the statutory law. See State, ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1943), Shaw v. Caddo Parish School Bd., 347 So.2d 39 (La.App. 2d Cir. 1977).

We find no such showing in this instance and affirm the judgment dismissing plaintiff’s demands at appellant’s cost.


author: MARVIN, Judge.

text:
    Troy W. ROBERTS, II, Plaintiff-Appellant, v. Charlotte F. ROBERTS, Defendant-Appellant.
    No. 13802.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Carl F. Walker, Monroe, for plaintiff-appellant.
    Bruscato & Loomis by Anthony J. Brus-cato, Monroe, for defendant-appellant.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this contest the father’s petition for a change in child custody was dismissed on the mother’s exception of no cause of action and the mother’s petition to prohibit the father from taking the child to a psychiatrist was dismissed on the court’s exception of no cause of action. CCP 927. Permanent custody had been awarded the mother in a considered decree about five months before when the parties were divorced. Both parties appeal. We reverse and remand.

We are required to construe pleadings to achieve substantial justice under our liberal pleading rules. Where a court can reasonably do so, it should maintain a petition as against the peremptory exception of no cause of action to afford the litigant an opportunity to present his evidence. Haskins v. Clary, 346 So.2d 193 (La.1977). This principle prevails even though the allegations are somewhat incredulous. Crier v. City of New Orleans, 365 So.2d 35 (La.App. 4th Cir. 1978).

In Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977), considering the effect of a considered decree, we held:

“In actions to change legal custody after a considered decree, a parent seeking the change is required to show not only a change in circumstances since the considered decree, but that the change in circumstances is of such magnitude that the continuation of custody thereunder would be, to some degree, detrimental to the interests and welfare of the child. Every change in circumstances will not justify unsettling a child’s environment. Each case will have to be determined on its own merits. In the absence of the required showing of detriment to the child by continuing custody under a considered decree, a change of custody will be denied.” 350 So.2d at 975.
“The environment of a child in the custody of one parent, after divorce, may never be as ideal as in the proverbial home of marital bliss. But once a considered decree has established custody which provides a reasonably stable and secure environment for the child, that custody should not be changed unless there are good substantial reasons to justify the change.” 350 So.2d at 976.

THE FATHER’S CAUSE OF ACTION

The father alleged that “his minor son [in the mother’s legal custody] is being required to be very nice to [the mother’s] boyfriend, whom the minor knows to be the person responsible for the breakup of his home, which creates a stressful situation that is detrimental to the minor. * * * [and] By requiring [the minor] to remain in the custody of his mother, under the circumstances when he has continued to express his desire to live with his father, will create emotional stress that could cause permanent psychic damage.”

The father’s allegations explicitly state that under the circumstances in which the child is now living in the custody of the mother under the considered decree, he is being subjected to emotional stress which could cause permanent psychic damage. While the specific words, “change in circumstances” and “detriment” are not used, the allegations strongly and reasonably imply that these circumstances are detrimental to the child and either have arisen or have increased in frequency after the considered decree awarded permanent custody to the mother. Following Haskins, supra, and Languirand, supra, we shall allow the father the opportunity to show that these are good and substantial reasons justifying a change in custody. See Languirand, at p. 976.

THE MOTHER’S CAUSE OF ACTION

Her allegations relate to the father’s actions in taking the child to a psychiatrist for examination and evaluation without her knowledge or consent. She alleged that this was outrageous and harmful conduct. She prayed that the father “be prohibited in the future from interfering with [her] . . custody . and from taking the minor ... for medical treatment or evaluation without [her] consent . . . except in an emergency.”

We need not weigh the mother’s allegations against the COP articles relating to the requirements for injunctive relief. What the mother is attempting to do is to limit or to restrict what the father may do with the child during visitation periods. The father’s authority over the child during visitation periods may be and should be regulated or restricted if it is shown that the exercise of that authority is harmful to the child. See Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir. 1974). Again following Haskins, we shall allow the mother the opportunity to show that the father’s conduct in taking the child to a psychiatrist during visitation periods without her consent is harmful to the child, as she has alleged.

Costs here are assessed one-half to each litigant.

The judgments sustaining the exceptions are reversed and the matter is remanded for further proceedings.


text:
    Leonard MYRES, Plaintiff-Appellant, v. LIGHTHOUSE LIFE INSURANCE COMPANY, INC., Defendant-Appellant.
    No. 13803.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Claudius E. Whitmeyer, Shreveport, for plaintiff-appellant.
    Barry E. Edwards, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff sued his former employer for $600 for past due salary, penalty wages and attorney fees under La.R.S. 23:631-2. From judgment awarding plaintiff $160 (representing 4/sths of one week’s salary) and $500 attorney fees, but rejecting the demand for penalty wages, both parties appeal. We amend to increase the award for attorney fees and as amended affirm.

The issues relate to whether penalty wages and attorney fees should be awarded.

The versions given by plaintiff and defendant as to the nature of plaintiffs employment, his salary and the date of termination differ substantially. Plaintiff contends he was hired by the defendant insurance company on March 2,1977 as a district manager for the Baton Rouge area at a weekly salary of $200. He alleges the last salary he received was for the week ending April 9,1977 and that he tendered his resignation on April 28, 1977. He maintains he is entitled to three weeks pay at $200 per week from April 9 until April 28th.

The president of defendant company was the primary witness for the defense. He at first testified plaintiff was never hired as a district manager but had only been hired to work under a “builder’s contract.” However, he later admitted that plaintiff did serve as a district manager until some time in April of 1977, when he was relieved of these duties and instructed to work under a builder’s contract which carries no set salary. He testified plaintiff failed to perform his duties under the builder’s contract and therefore earned no salary during the three weeks in question.

In his reasons for judgment, the trial judge agreed with plaintiff’s contention that he had been hired as a district manager in March of 1977, but he also found that the company became dissatisfied with plaintiff’s performance of these duties. He found the president of defendant company relieved plaintiff of these duties at a luncheon meeting on April 14,1977 in Shreveport when he informed plaintiff he was to work instead under a builder’s contract which carried no set salary. Accordingly, the trial court rejected plaintiff’s contention that he worked as a district manager until April 28, when he tendered his resignation. The record supports the findings of the trial court and we adopt them as our own.

Using April 14 as the date plaintiff was relieved of his duties as district "mariag'er, the trial court held that plaintiff was entitled to his salary as district manager for the work week of April ll-15th. The court refused to award plaintiff penalty wages under La.R.S. 23:632 because there was a bona fide dispute as to the amount owed. Attorney fees in the amount of $500 were awarded.

The issues raised deal with the application and interpretation of La.R.S. 23:631-2 which provide:

§ 631.
It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.
§ 632.
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney’s fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.

Plaintiff’s first argument on appeal is that the trial court erred in not assessing penalty wages under La.R.S. 23:632.

The penalty wage provisions contained in this statute are harsh and coercive in nature and must be strictly construed. If the employer has some equitable justification for non-payment of wages, the penalties will not be imposed. Scallan v. Mark Petroleum Corp., 303 So.2d 498 (La.App. 2d Cir. 1974), writ denied 307 So.2d 370 (La.1975); Porter v. Lombardino, 303 So.2d 493 (La.App. 2d Cir. 1974), writ denied 307 So.2d 370 (La.1975); Otwell v. Howard Lumber & Supply Co., Inc., 283 So.2d 826 (La.App. 2d Cir. 1973), writ denied 286 So.2d 364 (La.1973). As stated in the Otwell case:

Thus, where there is a bona fide dispute or question as to whether wages are due, a failure to pay may not properly be classified as an arbitrary refusal to pay under the terms of the statute. Under such circumstances penalties are not properly allowable. It is not sufficient to warrant the imposition of penalties to merely establish there were wages actually due and owing. Two additional facts are essential elements to be established in order that penalties may be held to have been incurred; they are a demand for payment, in accordance with the provisions of the statute, and an arbitrary refusal to pay following demand. The burden of proof is upon the former employee to establish all the essentials prerequisite to recovery.

The trial court found a bona fide dispute between the parties as to the amount owed and concluded that the defendant was in good faith in opposing the claim. Plaintiff argues, however, that the employer acted arbitrarily in not paying him for the one week’s salary which the trial court ultimately found due.

Plaintiff relies upon Duhon v. Prof. Erny’s Music Co., Inc., 328 So.2d 788 (La.App. 3d Cir. 1976) for the proposition that the employer must pay the undisputed portion, even though he resists the remainder of the claim, in order to escape the imposition of penalty wages. In Duhon the plaintiff brought suit for $175 unpaid wages. The defendant employer never disputed that he owed $84.79 of this claim. Penalties were imposed because of the failure to pay the undisputed portion of the claim.

We have no quarrel with the rationale of the Duhon case. Nevertheless, it is distinguishable from the case at bar in which the employer went to trial contending that it owed plaintiff nothing. It was only after trial on the merits that the court found plaintiff was due one week’s salary. While it is true the employer was ultimately unsuccessful in its contention that it owed plaintiff nothing, this does not mean the amount of the salary found due was “undisputed” or that the employer acted in bad faith in resisting the claim. We find the trial court was correct in denying penalty wages.

The issue presented by the employer’s appeal relates to the award of attorney fees. It contends the trial court erred in relying on jurisprudence from this circuit which holds an award of attorney fees under La.R.S. 23:632 is proper even when the employer acted in good faith. Scallan v. Mark Petroleum Corp., supra; Porter v. Lombardino, supra; see also Nolfo v. Landeche, 339 So.2d 1331 (La.App. 1st Cir. 1976); Robertson v. International Motor Co. of Houma, Inc., 314 So.2d 531 (La.App. 1st Cir. 1975); Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975). Defendant argues we should adopt the position taken by the third circuit in Carriere v. Pee Wee's Equipment Co., 361 So.2d 1223 (La. App. 3d Cir. 1978) which held that equitable defenses by the employer preclude an award for attorney fees.

Defendant’s argument is without merit. The Louisiana Supreme Court granted writs in the Carriere case, reversed the third circuit, and resolved the conflict between the courts of appeal. The court held that an award for attorney fees is mandatory if the employee recovers unpaid wages. Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978).

Plaintiff’s other argument on appeal is that the $500 award for attorney fees should be increased. We agree. In view of the additional work done in connection with this appeal, we find the award should be increased to $750.

The judgment of the lower court is amended to increase the award for attorney fees to $750; in all other respects it is affirmed at the cost of defendant.

      . After this suit was filed the legislature amended these two statutes by Act 317 of 1977. The statutes presently provide:
      § 631.
      A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person im-ploying such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      * * * * * *
      § 632.
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

      . The addition of ¶ B to La.R.S. 23:631 by the legislature in 1977 appears to be a codification of the rationale of the Duhon case. See footnote 1, supra.


text:
    Stephen E. CLAUSEN, Plaintiff-Appellant, v. Mary L. CLAUSEN, Defendant-Appellee.
    No. 13,804.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.

    Booth, Lockard, Jack, Pleasant & LeSage, by H. F. Sockrider, Jr., Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.

       Bolin, J., recused.

   JONES, Judge.

The plaintiff, Stephen E. Clausen, appeals from a judgment rejecting his demands for permanent alimony from his former wife, Mary Louisa Clausen. We affirm.

The trial court overruled an exception of no cause of action. The exception was based upon the provisions of C.C. Article 160 and the interpretation of this Article in the recent supreme court decision reached upon rehearing in the case of Loyacano v. Loyacano, 358 So.2d 304 (La.1978) which held that it does not provide permanent alimony for the husband. Following the trial of the alimony rule, the trial court determined that C.C. Article 160 provides for alimony for a husband, but denied the plaintiff, who was earning no money, alimony because of his ability to work and provide his own means of support. The trial court acknowledged that the latter determination was contrary to the rationale of the supreme court decision in Ward v. Ward, 339 So.2d 839 (La.1976) which held “If the wife is unemployed, however, and receives no earnings, her earning capacity or potential income is not a proper basis for rejecting alimony. Earning capacity alone does not fall within the definition of ‘means’ in Article 160”. p. 842

We affirm the judgment rejecting the husband’s claim for alimony for different reasons than those upon which the trial court based its decision.

In the decision of Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216 (1970) the supreme court reversed this court which had applied Louisiana tort law to an Arkansas automobile accident. The supreme court said:

“So far as we can ascertain, this is the first case in the history of the jurisprudence of this State in which a Louisiana court has applied Louisiana law to a foreign tort; this, in spite of urgings to the contrary. Fry v. Lamb Rental Tools, 275 F.Supp. 283 (W.D.La.1967); Doty v. Central Mutual Ins. Co., 186 So.2d 328 (La.App.1966); Blanchard v. Blanchard, 180 So.2d 564 (La.App.1965) concurring opinion of Judge Tate. What is unique here is that this departure from the settled jurisprudence should be undertaken by an intermediate court. The action involves, at least, a failure by the Second Circuit to recognize its obligation to follow the settled law of this State. For, since the question is not regulated by statute, the law is what this Court has announced it to be.” [emphasis added] pp. 217, 218

While there is no extensive line of jurisprudence addressed to the constitutionality of C.C. Article 160, we find the Loyacano v. Loyacano, supra, interpretation of the Article, the legislative history and cases cited in the opinion in support of it, at least at this time, results in the law that the husband has no right to alimony being well settled within the contemplation of Johnson v. St. Paul Mercury Ins. Co., supra.

Since there is no statutory provision providing for alimony for the husband, the law as to his right to it is what the supreme court says it is and the supreme court says he has no right to alimony.

We AFFIRM at appellant’s cost.

      . C.C. Article 160 — “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one third of his income . . . ”