author: DIXON, Justice.

text:
    STATE of Louisiana v. Frederick SMITH.
    No. 60852.
    Supreme Court of Louisiana.
    April 10, 1978.

      Stuart R. Thomson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was charged by bill of information with three offenses arising out of same criminal act: armed robbery, attempted aggravated rape and attempted second degree murder. He was tried by jury and found guilty of simple robbery, attempted aggravated rape and attempted second degree murder. The trial judge sentenced the defendant to serve two consecutive terms of twenty years imprisonment at hard labor for the attempted aggravated rape and the attempted second degree murder, and to serve five years imprisonment at hard labor for the simple robbery, the sentence to run concurrently with the two twenty year terms.

Evidence received at trial showed that on February 11, 1975 a young male entered a small Baton Rouge drugstore owned and operated by a seventy-six year old woman. The man grabbed the elderly lady, rifled through the cash register pocketing some forty to fifty dollars, then dragged the terrified woman to the rear of the store. There he tried unsuccessfully to rape the woman, and beat her severely with a bottle and a broomstick. The man then fled through the rear of the store, leaving his victim lying in a pool of blood. The woman managed to summon help and was soon taken to a local hospital. Six weeks later the defendant was arrested. One week after the arrest the defendant was identified in a line-up by the victim and by a witness who saw the man enter and leave the store at the time of the offense.

Assignment of Error No. 1A

The defendant contends that the trial court erred in denying a motion to quash the bill of information which was based in part on the ground that he was denied his constitutional right to a speedy trial.

The record shows the following chronology of events leading up to the defendant’s trial and conviction:

February 11,1975 Offense committed
March 24,1975 Defendant arrested
March 25,1975 Defendant was brought before a judge and counsel was appointed
March 31,1975 Defendant was identified in the line-up
October 21,1976 Bill of information filed against the defendant
October 29,1976 Court set arraignment for November 29,1976
November 29,1976 Defendant appeared for arraignment, new counsel was appointed, and the arraignment was passed and reset for December 2,1976
December 2,1976 Defendant appeared for arraignment, but his attorney failed to appear. Arraignment reset for January 6, 1977
December 27,1976 Defendant files a pro se motion for the appointment of counsel and for a preliminary hearing
January 6, 1977 Defendant appeared for arraignment. New counsel was appointed and arraignment was reset for January 13, 1977
January 13,1977 Both the defendant and his attorney failed to appear for arraignment. Arraignment was passed and reset for January 21,1977
January 21,1977 Defendant appeared in court with counsel, waived formal arraignment, and pleaded not guilty to all three charges. Trial set for April 18, 1977
March 2,1977 Defendant appeared in court for a preliminary hearing but his counsel failed to appear. The hearing was passed and reset for March 9,1977
March 9,1977 Preliminary hearing passed and reset for March 30, 1977 on court’s motion
March 30,1977 Defendant and counsel appeared in court for a preliminary hearing. With the consent of defense counsel, the hearing was passed and reset for April 1,1977
April 1,1977 Defendant and counsel appear for preliminary hearing. On motion of the State, with defense counsel’s consent, the hearing was passed and reset for April 5,1977
April 5,1977 Defendant and counsel appear for preliminary hearing. On motion of the State, with defense counsel’s consent, the hearing was passed and reset for April 7,1977
April 7,1977 Defendant and counsel appear for preliminary hearing. Evidence was taken and the court found probable cause to hold the defendant for trial for the attempted aggravated rape and the attempted second degree murder, but found no probable cause for the armed robbery
April 18,1977 Trial passed and reset for April 19,1977
April 19,1977 Trial passed and reset for April 26,1977
April 26,1977 Motions heard. Trial commenced.

The fundamental right to a speedy trial under the Sixth Amendment of the United States Constitution and Art. 1, § 16 of the La.Const, of 1974 is engaged by the filing of “ . . .a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a formal charge . . . ” United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); State v. Fraise, 350 So.2d 154 (La.1977); State v. Neyrey, 341 So.2d 319 (La.1976).

In State v. Neyrey, supra, we set out the following test in reference to speedy trial:

“ . . .In determining whether this constitutional right has been violated, no fixed time period governs; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of the delay; the reason for the delay; the defendant’s assertions of his rights; and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Bullock, 311 So.2d 242 (La.1975).” 341 So.2d at 325.

See also State v. Fraise, supra; State ex rel. Miller v. Craft, 337 So.2d 1191 (La.1976).

In the present case a period of twenty-five months separated the defendant’s arrest and trial. Aside from the delay of approximately three months caused by the failure of defense counsel to appear in court, it seems that the bulk of the delay (approximately twenty months) may be attributed to the failure of the district attorney to file the bill of information against the defendant.

The record before us is not very clear about the cause for the delay in filing the bill against defendant. The trial judge indicated that defendant had other charges pending against him while in jail. We can glean from the record: that the policeman who arrested defendant for this offense was also looking for him for another reason; that defendant was brought into another section of court shortly after arrest, and had lawyers appointed to represent him on other charges; and that he appeared in the court where he was tried on a bench warrant issued on other cases pending against him.

There is no evidence of bad faith or deliberate delay on the part of the State. Some administrative confusion on the part of both the prosecutor’s and the indigent defender’s offices is suggested by the record. But the prosecutor had established a procedure to insure against a prisoner’s becoming “lost” in the jail, and defendant was aware of it. A sheet of paper was available to prisoners on which they could check a box to communicate with their lawyer, the prosecutor or the court. Defendant referred to this as the “cop-out sheet,” but he testified to no effort to communicate with anyone about this case, except the two “alibi witnesses.” He apparently had regular visitors in jail throughout his incarceration.

Neither does it appear that the defendant suffered any substantial prejudice as a result of the delay. The only prejudice asserted by the defendant was the inability to locate two alibi witnesses, but one of the two testified at trial that she did not see defendant on the day of the offense, and the defendant admitted on cross-examination that he was not with the other at the time of the offense. In sum, it does not appear that the defendant was denied his right to a speedy trial. The trial court properly denied the motion to quash, and the assignment is without merit.

Assignment of Error No. IB

Defendant contends that the trial court erred in denying a motion to quash alleging that the defendant had been denied effective assistance of counsel. The defendant argues that until the last attorneys were appointed he was effectively without counsel because none of those previously appointed contacted him or did anything to advance his defense.

Because we find that the only effect of the faulty representation prior to the appointment of defendant’s present counsel was delay, and because we have determined that the defendant was not prejudiced by this delay, we cannot say that the trial court erred in denying the defendant’s motion to quash raising these grounds.

Assignment of Error No. 1C

Defendant contends that the trial court erred in denying his motion to quash alleging that he had been arrested without probable cause and without a warrant. The lack of probable cause to arrest is not a ground for quashing a bill of information and is not, of itself, sufficient to void a subsequent conviction. See State v. Jenkins, 338 So.2d 276 (La.1976). Further, the defendant failed to argue both before the trial court and in brief before this court any illegality resulting from the arrest of the defendant which may be addressed on appeal. Accordingly we find that this assignment is without merit.

Assignment of Error No. 2A

Defendant contends that the trial court erred in failing to suppress the in-court and out-of-court identifications on grounds that the line-up identification was tainted by the denial of the defendant’s right to be represented by counsel.

The State argues that the jurisprudence is well-established that a defendant need not be represented by counsel at a pre-indictment line-up, relying on Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 441 (1972); State v. Fields, 342 So.2d 624 (La.1977); State v. Hargrove, 330 So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976). While the proposition advanced by the State is most certainly too broad, it is safe to say that representation by counsel is not required in all cases of pre-indictment line-ups. In the present case the record shows that the Baton Rouge public defender’s office was appointed to represent the defendant on the day after his arrest. On the day of the line-up, an assistant district attorney telephoned the public defender’s office to inform them of the proposed line-up. The indigent defender’s office responded that they would attend the line-up. Later in the day the assistant district attorney called again to confirm the presence of defendant’s counsel at the line-up. This time the indigent defender’s office told the assistant district attorney that they had decided not to attend the line-up. Under these circumstances, it is apparent that the State did all that was possible to insure the presence of defendant’s appointed counsel.

There is no evidence that the line-up was unfair. Defendant, himself, was permitted to select the other prisoners who stood in the line-up, and selected persons he thought resembled him. The State should not be prevented from using evidence obtained through a line-up when that line-up was fairly conducted merely because the defendant’s attorney decides not to attend and does not request that it be delayed. Accordingly, we hold that the defendant’s right to counsel was not violated in the present case.

Assignment of Error No. 2B

Defendant contends that evidence of the line-up and identification should have been suppressed because of unduly suggestive procedures occurring before the actual line-up took place. Specifically, he argues that the identification was not reliable because the line-up took place fifty days after the offense was committed and because the witness who saw the defendant enter and leave the store was shown mug shots of the defendant at some time prior to the actual line-up.

This assignment is without merit. There is no showing in the record that the procedures used produced a substantial risk of misidentification, and, accordingly, the defendant’s rights to due process were not violated. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, 353 So.2d 1005 (La.1977).

Assignment of Error No. 3

Through this assignment the defendant contends that the trial court erred in denying a motion for a mistrial made after the defendant was- “surprised” by the testimony of a State witness. The assignment is clearly without merit. There is no ground for mistrial based on the surprise of the defendant concerning the testimony of State witnesses. See C.Cr.P. 770-775.

Assignment of Error No. 4

This assignment was taken to the overruling of an objection made to the following remarks in the State’s closing argument:

“Does a person who has a witness at the time who can alibi for him—Joyce Johnson, the way the story started, they were a group of them on the porch playing cards that afternoon, if you remember what Joyce Johnson said, there wasn’t one, there was a group of them on the porch playing cards, that afternoon. If it had been the afternoon that he was there, there was a group. Now, had he been innocent of this crime and been with this group of people, he would have had-— well, how many in a group, four—maybe five ...”

The defendant argues that the remarks constitute reference to the failure of the defendant to produce alibi witnesses. We do not agree. It appears that the comment, when taken in context, is simply a reference to a lack of evidence—permissible argument under C.Cr.P. 774.

Assignment of Error No. 5

The defendant contends that the trial court erred in overruling his objection to the following question asked the victim of the offense by the State on direct examination:

“Q. Did he have intercourse with you?”

The defendant contends that this was a leading question. The record shows that the question was asked to clarify the witness’ earlier statement that she had been raped. As such, it cannot be said to be a leading question, and'no reversible error is shown. See State v. Sheppard, 350 So.2d 615 (La.1977).

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

      . Immediately before this question, the prosecutor had asked:
      “Okay, now, he didn’t actually have intercourse with you, did he?”
      The defendant objected to the question as leading and the prosecutor rephrased it.


source: Caselaw Access Project

author: MARCUS, Justice. DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Vester RANKIN.
    No. 60936.
    Supreme Court of Louisiana.
    April 10, 1978.

      J. Michael Veron, Lake Charles, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., J. B. Jones, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Vester Rankin was charged by bill of information with aggravated assault in violation of La.R.S. 14:37. After a judge trial, defendant was found guilty as charged and sentenced to serve six months in the parish prison. Defendant’s application to this court for review under our supervisory jurisdiction was granted. He asserts two assignments of error for reversal of his conviction and sentence. Finding reversible error in Assignment of Error No. 2, we pretermit consideration of the other assigned error.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in admitting in evidence an oral confession made by him at the time of his arrest.

Prior to trial, the state notified defendant of its intent to introduce the confession in evidence; defendant made an oral motion to suppress it. The trial judge did not rule on the motion at this time. During its case-in-chief, the state did not introduce the confession in evidence. In an apparent attempt to prevent any possibility of introduction of the confession in evidence during the state’s rebuttal, defendant called James W. Erbelding, the arresting officer, as a witness. Officer Erbelding testified on direct examination that, at the time of his arrest, defendant appeared to be intoxicated and disoriented, confused and irrational. On cross-examination, the state questioned Officer Erbelding concerning the Miranda warnings given defendant at the time of his arrest, apparently as a part of a foundation for introduction of the oral confession in evidence. The officer testified that he read the Miranda rights to defendant and asked if he wished to make a statement. The state then asked the officer, “Did he tell you he had shot — .” Defendant objected on the ground that defendant was not capable of making a knowing and intelligent waiver of his constitutional rights at the time of his arrest due to his intoxicated condition. The court ruled, “The objection will go to the weight.” The state then asked the witness, “Didn’t he tell you he had shot Antoine [victim] at Bernice’s place [location of the alleged shooting]?” The witness responded in the affirmative. Defendant made his objection general to this entire line of questioning. The witness in response to further questions by the state testified to other inculpatory statements made by defendant at the time of his arrest.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. Where the free and voluntary nature of a confession is challenged on the ground that he was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977).

In the instant case, Officer Erbeld-ing testified that at the time of his arrest, defendant appeared to be intoxicated and disoriented, confused and irrational. No other witness testified concerning defendant’s condition at the time of his arrest. Based upon this evidence, we are unable to say that the state has satisfied its burden of affirmatively proving that the oral confession made by defendant at the time of his arrest was free and voluntary after being advised of his Miranda rights. On the contrary, the evidence is clear that defendant was not capable of understanding his Miranda rights and making a free and voluntary confession due to his intoxicated condition. Hence, the trial judge committed reversible error in admitting in evidence the oral confession made by defendant at the time of his arrest.

Having found the confession inadmissible for the reasons assigned, we need not reach the issue of whether, under other circumstances, an accused’s confession may be introduced in evidence during cross-examination of a defense witness, other than the accused, to impeach the testimony of that witness.

DECREE

For the reasons assigned, the conviction and sentence are reversed; the case is remanded for a new trial in accordance with law.

CALOGERO, J., concurs.

DENNIS, J., concurs and assigns reasons.

SUMMERS, J., dissents.

DENNIS, Justice,

concurring.

While I concur fully in the holding of the majority opinion, I cannot agree with the dictum that “the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying.” The issue of voluntariness is complex and its decision depends on many variables, see, State v. Glover, 343 So.2d 118 (La.1977). I do not think a finding of absolute loss of comprehension or consciousness of consequences is a prerequisite to determination that a confession lacked voluntariness due to intoxication alone or in combination with other factors.

      . 352 So.2d 233 (La.1977).


author: PER CURIAM.

text:
    STATE of Louisiana v. Patrick DIXON.
    No. 60990.
    Supreme Court of Louisiana.
    April 19, 1978.
    Steve Young, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Charles J. Yeager, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana ex rel. Melvin DILLARD v. CIVIL DISTRICT COURT PARISH OF PLAQUEMINES DIVISION D State of Louisiana.
    No. 61898.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Melvin Dillard applying for writs of mandamus and prohibition. Parish of Plaquemines.

Writ granted. Clerk of Court ordered to consider relator’s petition filed in trial court as a request for service on defendant at address listed therein.

SUMMERS, J., is of the opinion applicant must inform the Clerk of Court where the defendant should be served.


text:
    Bobby RAWLEY in lieu of Cullen Rawley, Deceased v. BOGALUSA LOAN CORP. and Betty Seals Rawley, Defendant, First State Bank and Trust in lieu of Benj. W. Miller, Deceased, Third Party Defendant.
    No. 62054.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Bogalusa Loan Corporation, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington.

Writ denied. Under the facts of this case, the result is correct.

DIXON, J., would grant.


text:
    Elwood DUGAS v. COCA-COLA BOTTLING COMPANY.
    No. 61976.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Elwood Dugas applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 356 So.2d 1054.

Denied.

TATE, J., would grant the writ.


text:
    Peter C. AGNELLY v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. 61971.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Peter C. Agnelly applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 595.

Writ denied.

TATE, J., and DENNIS, J., would grant.


text:
    CITY OF LAKE CHARLES v. Daniel W. CRADEUR.
    No. 61967.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Daniel W. Cradeur, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Calcasieu.

Denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    Succession of George H. SPINKS v. Tommie SMOTHERS.
    No. 61966.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Tommie Smothers, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville.

Writ denied.

DIXON and DENNIS, JJ., are of the opinion the writ should be granted.


text:
    Eva Nero VALLERY v. CITY OF CROWLEY and Fidelity & Casualty Co. of New York.
    No. 61942.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Eva Nero Yallery applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia No. 6367.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. George C. PERILLOUX, Jr.
    No. 61935.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of review, certiorari, mandamus and prohibition. Parish of Orleans.

Writ denied. On the showing made, no error is shown in the ruling complained of.

SANDERS, C. J., SUMMERS and MARCUS, JJ., would grant the writ.


text:
    MINI-TOGS, INC. et al. v. Fred E. YOUNG.
    No. 61920.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Mini-Togs, Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Toni TREPAGNIER.
    No. 61914.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Toni Trepagnier, applying for writ of review. Parish of Orleans.

Denied.

TATE and CALOGERO, JJ., would grant writ.


text:
    Andrew J. FOWLER and Blanche Fowler v. STATE of Louisiana and the Board of Supervisors, Louisiana State University and Agricultural & Mechanical College and Niagara Fire Insurance Company.
    No. 61889.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: The Board of Supervisors, Louisiana State University, et al. applying for writ of review or remedial writs. East Baton Rouge.

Denied.

SANDERS, C. J., would grant.

SUMMERS, J., concurs on the ground application is untimely.


text:
    STATE of Louisiana, ex rel. Roy HOLLINGSWORTH v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS, State of Louisiana.
    No. 61789.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Roy Hollingsworth, applying for writ of mandamus. Parish of Orleans.

Denied.

TATE and MARCUS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Melvin Kim NEITTE.
    No. 61707.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Melvin Kim Neitte applying for writ of certiorari and stay order.

Writ granted.

SUMMERS, J., is of the opinion the application is not timely filed and should not be considered.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Richard B. Williams, Judge of the 10th Judicial District, Court for the Parish of Natchitoch-es, to transmit to the Supreme Court of Louisiana, on or before the 12th day of May, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


author: LANDRY, Judge.

text:
    Linda Lynch DOLHONDE v. Kenneth C. DOLHONDE.
    No. 11454.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    On Rehearing April 17, 1978.
    See also La.App., 345 So.2d 596.
    Wright Wade Adams, Baton Rouge, of counsel, for plaintiff-appellee Linda Lynch Dolhonde.
    Lemuel E. Hawsey, Baton Rouge, of counsel, for defendant-appellant Kenneth C. Dolhonde.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

This appeal by defendant, Kenneth Charles Dolhonde (Appellant), presents the primary question whether the adoptive father, who is married to the natural mother of his adoptive child by a former marriage which ended in divorce, or the natural mother of such a child is the proper party to sue the child’s biological father for unpaid child support. The trial court held the mother was the proper party. We reverse and remand.

Plaintiff, Linda Lynch Dolhonde (Appel-lee), was formerly married to Appellant, of which marriage one child, namely, Elizabeth Ann Dolhonde, was born. On December 12,1969, Appellee was granted an absolute divorce from Appellant on ground of their having lived separate and apart for more than 2 years. The judgment of divorce also awarded Appellee custody of the child and child support in the amount of $100.00 monthly, commencing January 1, 1970, payable to Appellee for the support of the minor.

By judgment rendered April 22,1976, Ap- s pellee’s present husband, Basil Grumberg Mayer, was recognized and declared the adoptive father of Elizabeth Ann Dolhonde, with Appellee’s consent. The adoption proceeding was conducted pursuant to La.R.S. 9:422.1, in which Appellant’s consent to the adoption was dispensed with due to Appellant’s failure to pay child support for a period of one year.

The present proceeding was commenced by Appellee on August 10, 1976, to reduce to judgment unpaid child support allegedly aggregating $6,353.33. Appellant filed exceptions of lack-of procedural capacity and prescription. Appellant also pled waiver of all but $30.00 monthly child support payments and the affirmative defense of election of remedies.

The trial court overruled all exceptions and pleas of Appellant except that of prescription. Judgment was awarded Appellee for all unpaid child support accruing in the 3 year period preceding filing of suit, namely, the sum of $2,205.00.

The minor in question is unemancipated and under the age of majority. Procedural capacity as regards such a minor is governed by La.C.C.P. Article 683, which states:

“An unemancipated minor does not have procedural capacity to sue. .
“The father, as administrator of the estate of his minor child, is the proper plaintiff to sue to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are not divorced or judicially separated.”

The above authority expressly provides that the father is the proper party to enforce a right of an unemancipated minor who is the legitimate issue of living parents who are neither divorced nor judicially separated.

We note that La.C.C. Article 214 provides that an adopted person is considered for all purposes as the legitimate child of his or her adoptive parent or parents. The adoption having become final, the minor involved herein is deemed the child of her adoptive father as if she were born of her mother’s marriage to Mayer.

In this court, Appellee attacks initially La.C.C.P. Article 683 on the ground that it is unconstitutional in that it sanctions an arbitrary discrimination based on sex. We dispose of this issue simply by noting that unconstitutionality of a statute may not be raised initially on appeal. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971); Johnson v. Welsh, 334 So.2d 395 (La.1976).

Appellee argues that since the judgment for child support was rendered in her favor, and because the demand is for past due benefits under the judgment, she (Appellee) should sue in her own right and not as legal representative of the child.

Admittedly our confusing jurisprudence on the subject lends some support to Appel-lee’s contention, especially in those cases where a mother sues for an initial alimony award for a minor child.

Despite La.C.C. Article 157 which provides that the parent gaining custody of a child shall of right become natural tutor or tutrix the same as if the other party were deceased, the Supreme Court held in Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972), that the natural tutor must qualify as tutor to represent a minor and that a parent with custody does not ipso facto become a natural tutor.

Following Griffith, above, Simon v. Calvert, 289 So.2d 567 (La.App. 3d Cir. 1974), relying upon Walder v. Walder, 159 La. 231, 105 So. 300 (1925), held that a mother having custody of a child could enforce child support payments without first qualifying as natural tutrix. In so holding, Simon, above, distinguished claims for child support from claims for personal injuries to minors and other claims and rights of minors.

Despite its refusal of writs in Simon, above, the Supreme Court subsequently took a contrary position in Miller v. Miller, 321 So.2d 318 (La.1975), which involved an action by the mother of an emancipated minor to reduce an unpaid child support claim to judgment. Miller, above, concluded that the emancipated minor alone could sue to recover unpaid alimony after attaining majority. In so holding the court found that the claim belonged to the minor and observed:

“It is appropriate to point out that one person may not acquire a ‘property right’ over property or a right that belongs to another. In the instant case once the minor becomes a major he owns both the property and the right ... to sue for his support.”

We view Miller, above, as holding that, in whatever capacity a party having custody of a minor obtains a judgment for child support, the judgment is the property of the minor. This appears to be a sound and rational solution because it is elementary that the award is for the support and maintenance of the minor, not the party having custody. See La.C.C. 227.

Although the question of Appellee’s capacity to obtain the judgment of alimony for the child was a viable issue in the granting of the alimony award initially, we do not face the issue in this instance. In that action Appellant did not question Appellee’s capacity and the judgment has become final. It stands until modified or annulled by a subsequent decree.

The judgment for support is the property of the minor. Miller, above. Considering the judgment is the property of a legitimate minor, the father of the minor, married to and living with the minor’s mother, is the proper party to enforce the minor’s rights under the judgment of support. La. C.C.P. Article 683. It follows that Appellee lacks procedural capacity in this instance and that Appellant’s exception of lack of procedural capacity is well founded. In the interest of justice, however, according to La.C.C.P. Article 2164, we exercise our supervisory jurisdiction and remand this matter to allow time for amendment of the pleadings to substitute the proper plaintiff as party herein. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971); Nettles v. Great American Insurance Company, 155 So.2d 87 (La.App. 1st Cir. 1963), writ refused, 244 La. 1024, 156 So.2d 227 (1963). La.C.C.P. 805.

It is ordered, adjudged and decreed that the judgment of the trial court in favor of Appellee is hereby reversed and set aside and this matter remanded to the trial court. A period of 15 days from finality of this judgment is hereby granted to substitute the proper party plaintiff herein, in accordance with the views herein expressed. Costs in this court are assessed against Ap-pellee. The assessment of other costs shall await the ultimate outcome of this action.

Reversed and remanded.

ON REHEARING

We granted a rehearing herein on motion of Appellee, Linda Lynch Dolhonde, to determine the effect of Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), on our decision rendered herein November 21,1977, holding that Appellee lacked procedural capacity to sue for past due alimony owed for the support of Appellee’s minor child whose custody had been awarded to Appellee. We were unaware of Halcomb at the time of our initial decision herein.

Halcomb unquestionably overrules Miller v. Miller, 321 So.2d 318 (La.1975), on which we relied herein to hold that a judgment of alimony for child support belongs to the child and not to the custodial parent. In Halcomb, the former wife and mother was granted judgment for past due child support that accrued subsequent to termination of the children’s incapacity to sue. Hal-comb states that:

“In the Miller case, the wife was seeking to have determined and declared ex-ecutory the arrearage of an in globo award for alimony awarded to her and for support of three children. The trial court found that she had remarried and that one of the children had become fully emancipated by marriage. The trial court determined the arrearage and prorated the in globo award equally between the wife and children but disallowed claims for past due alimony by the wife subsequent to the date of her remarriage. On appeal to the First Circuit that part of the judgment disallowing any past due alimony to the wife after the date of her remarriage was affirmed, but the Court of Appeal reversed the judgment insofar as it terminated the award on a pro rata basis for past due support money to one of the children because he had attained the age of majority. ... In deciding the case we held that when a minor becomes fully emancipated by age or by marriage, his mother may no longer sue to have determined and made executory past due awards of child support from the father for the support of the child.”
“Insofar as that decision is in conflict with the pronouncements in this opinion, it cannot be approved. We agree that the wife may no longer institute original proceedings for the support of a child over whom she had custody after the child has reached majority. But this effect of a child’s majority does not apply to a motion by the mother to whom the award was made for the child’s support to have a child support award in arrears determined and made executory. . the latter situation involves an effort by the party to whom the award is due (the wife, not the child) to have determined and declared executory unpaid sums due as child support in a judgment of court in her favor rendered during the child’s minority.” 352 So.2d 1013, 1016-17.

It would appear that the decision in Hal-comb creates some inconsistency in the law inasmuch as La.C.C. Article 227 declares that the right to support belongs to the child and not to the custodial parent. While Halcomb may hold correctly that the parent in whose name the judgment was rendered should be accorded the right to enforcement, additional confusion appears from the holding in Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974), that a mother need not qualify as a natural tutrix to sue for support of a child in her custody. Regardless, as noted in our original decree, the question of Appellee’s capacity to obtain the alimony judgment for the child is not before us at this time.

In accordance with Halcomb, we hold that Appellee does have legal capacity to sue for past due child support.

On the merits, Appellant maintains that he should not have to pay the amount in arrears because Appellee has elected the remedy provided by La.R.S. 9:422.1; that is, Appellee has invoked the adoption without consent provisions of the statute and may not, therefore, recover the past due alimony.

We do not view La.R.S. 9:422.1 as a “remedy”. We deem it merely an adoption method authorized by the legislature under circumstances which the legislature deemed justification for the procedure therein set forth. Appellant was clearly liable for the child’s support for the entire time preceding the child’s adoption.

The previous judgment rendered herein is recalled and set aside and judgment rendered herein affirming the judgment of the trial court. All costs of these proceedings to be paid by Appellant, Kenneth C. Dol-honde.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Myrtle F. PHILLIPS, Individually and as Administratrix of the Succession of Griffin Phillips v. Louis NEREAUX, Jr., Irene Phillips Nereaux, and Carolyn June Phillips Hayes.
    No. 11739.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied May 1, 1978.

      Samuel C. Cashio, Charles R. Browning, Maringouin, for appellant-defendants, Louis Nereaux, Jr., Irene Phillips Nereaux and Carolyn June Phillips Hayes.
    Patrick W. Pendley of Freeman & Pend-ley, Plaquemine, for appellee-plaintiff, Myrtle F. Phillips, Individually and as Adminis-tratrix of the Succession of Griffin Phillips.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Myrtle F. Phillips, widow of Griffin Phillips, individually and as ad-ministratrix of the Succession of Griffin Phillips, against Louis Nereaux, Jr., Irene Phillips Nereaux and Carolyn June Phillips Hayes, to have certain sales of land and cattle declared null and void. The defendants appealed the decision of the Trial Court, and the plaintiff has answered the appeal.

Mr. Griffin Phillips was married only once in 1944 to Myrtle F. Phillips and of that marriage two children were born, Irene and Carolyn June. Myrtle Phillips was married twice before her marriage to Mr. Phillips and had three children from those prior marriages. Mr. Phillips was a farmer and raised cattle most of his life. He was in both World Wars and began receiving a veteran’s disability pension in 1958.

In 1949, Mr. Phillips bought at a sheriff’s sale approximately 300 acres near Rosedale, Louisiana. The deed failed to contain the double declaration; however, the Trial Judge concluded that the separate funds of Mr. Phillips were used to purchase the property.

In 1963 Irene married Louis Nereaux, Jr. In December of 1964 Mr. Griffin Phillips sold to Louis and Irene 3 acres for a cash consideration of $1,500.00 which was never monetarily paid. Louis and Mr. Phillips subsequently built the Nereaux home on that property. The consideration for the property according to the Nereauxs is the effort by Louis to aid Mr. Phillips both before and after his marriage to Irene in the operation of the farm. Appellee concedes the validity of this sale; thus, it is no longer at issue before this Court.

In 1967, for various reasons, Mr. Phillips executed a written lease to Louis Nereaux, Jr. for the property and 70 head of cattle for which $1,300.00 per year rental was charged. It is alleged by the appellee that these were sham leases in order to allow Mr. Griffin Phillips to maintain his veteran’s disability pension. On the other hand, the appellants contend that these were valid leases and that Louis took over running the operations of the farm and the cattle from 1967 on. The written leases executed on a yearly basis expired in 1972. Louis claims to have had an oral lease with Mr. Phillips from 1973 to 1974. In January of 1974 Louis claims to have purchased the cattle from Mr. Phillips for $15,000.00. This amount was obtained by Louis Ner-eaux, Jr. through a loan from the Bank of Maringouin which issued two checks, one for $15,000.00 to Mr. Griffin Phillips and one for $2,000.00 to Louis Nereaux, Jr. The loan was secured by a chattel mortgage on the cattle. At this time the ownership of the cattle is moot because of a rescission of the sale between Louis Nereaux and Griffin Phillips and a return of the cattle to the estate of Griffin Phillips. The controversy remaining is who is entitled to the calf crop, how many were produced, and for what years.

On February 9, 1973, Mr. Phillips executed two acts of sale dividing the Rosedale property in half between his two daughters for a consideration of $15,000.00 each, to be paid over a ten year period based on ten $1,500.00 notes, less five acres situated around the home of Griffin and Myrtle Phillips. The first draft of this sale was drawn up on September 5, 1972 and included a place for Mrs. Phillips to sign. She at that time refused to sign said draft and subsequently left the marital domicile. The sales were executed on February 9, 1973, and were recorded on February 20, 1973. During the interim Mrs. Phillips recorded a declaration of homestead on February 16, 1973 which included the property which was allegedly sold on February 9th. Mrs. Phillips returned home and remained with Mr. Phillips until his death.

On August 7, 1973, Mr. Clifford Redell contacted Mr. Griffin Phillips concerning a listing of the property for sale. Mr. Phillips signed a listing agreement which stated that the property was owned by him, was not rented, and was to be sold for $1,000.00 per acre. Mrs. Phillips refused to sign the listing agreement but stated that she would agree to selling the property if she received half of the cash. According to the appellants they had given permission for their father to list the property in order to maintain harmony in the family. The agreement was withdrawn on August 10, 1973.

On August 29, 1974, Mr. Griffin Phillips died intestate. Immediately following his death discussions ensued concerning the disposal of the cattle and the property. Mrs. Phillips was informed by Mr. Nereaux that he was owner of the cattle and offered her the $15,000.00 which he claims to have been holding for Mr. Phillips.

She refused to accept the amount that he offered and she claimed the ownership of the cattle. It was not until the opening of the succession that Mrs. Phillips claims that she learned of the February 9, 1973 sale of the property to her daughters. From October of 1974 to January of 1975 Mrs. Phillips along with her sons, son-in-law and neighbors maintained the operation of the farm. It is questionable whether Mrs. Phillips ordered Louis Nereaux off of the property or whether he merely stayed away until January 31, 1975 when he was appointed custodian of the herd by the trial court.

The Trial Judge found the status of the property to be community in that the sheriff’s sale contained no double declaration. He found that the sale of the 3 acres for the homesite of the Nereauxs was valid under LSA-C.C. art. 2404 which allows the husband to gratuitously donate immovables for the establishment of the children of the marriage. The second sales of the property on February 9, 1973 were held to be simulated sales in that no consideration was paid nor was there any intention to pay. It was found, however, to be a valid donation inter-vivos of the husband’s half interest in the property. The widow would receive her half of the community property which would include the area denoted in the Declaration of Homestead. The court held the leases valid from 1967 through 1973, giving title to all of the calf crop to Louis Nereaux except for the years 1974 and 1975. The calf crop estimated for those years was 50 calves per year which was owed to the estate by Mr. Louis Nereaux, Jr. Finally, the court found that the widow had no usufruct over the husband’s share of the community property since he did not die possessed of the property; therefore, Irene Phillips Nereaux and Carolyn June Phillips Hayes own half of the property in full ownership.

The appellants assign nine specifications of error to wit:

(1) The Trial Judge erred in holding that the immovable property which forms the subject of this lawsuit was the property of the community of acquets and gains existing between Griffin Phillips and the Plaintiff, Myrtle F. Phillips.
(2) The Trial Judge erred in holding that the Acts of Sale with Mortgage dated February 9, 1973, to Irene Phillips Ner-eaux and Carolyn June Phillips Hayes were simulated sales.
(3) The Trial Judge erred in ordering the return to Myrtle F. Phillips of a one-half (Vi) interest in the Northern tract of land sold to Carolyn June Phillips Hayes and a one-half (14) interest in the Southern tract of land sold to Irene Phillips Ner-eaux.
(4) The Trial Judge erred in ordering the return of the calf crops for the years 1974 and 1975, or the value thereof, to the estate of Griffin Phillips.
(5) The Trial Judge erred in holding that Mrs. Myrtle F. Phillips was entitled to twenty (20) acres which surrounded the actual homesite as a result of the declaration of homestead which she filed.
(6) The Trial Judge erred in holding that the fees of Kermit Williams and J. Gerald Dupont in the amount of $1,875.00 and $1,750.00, respectfully, be taxed as costs of court.
(7) The Trial Judge erred in casting the defendants, jointly, for one-half (Vi) of the court costs.
(8) The Trial Judge erred in admitting hearsay testimony concerning statements allegedly made by the decedent, Griffin Phillips.
(9) The Trial Judge erred in holding that Griffin Phillips transferred the property to his daughters in fraud of the Plaintiff’s rights under Civil Code Article 2404.

The appellee answered the appeal alleging aggrievement from the judgment in that the Trial Judge failed to return all the cattle, all the farm equipment purchased from 1967 to 1974, and all the property to the estate of Griffin Phillips. Finally, ap-pellee protests the assessment condemning her to pay half of the court costs. The aggrievements of the appellee will be encompassed in our discussion of the errors assigned by the appellant.

ERROR NO. 1

The Trial Judge concluded that even though Griffin Phillips had used separate funds to acquire the Rosedale property, such evidence could not be used to rebut the presumption that the property was a part of the community of acquets and gains in the absence of the double declaration in the sheriff’s sale.

Appellants argue that this result is not mandated by the Civil Code.

LSA-C.C. art. 2402 generally provides that the “community consists * * * of the estate which they [husband and wife] may acquire during the marriage, * * * by purchase, * * * even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. * * This codal article was last amended in 1902.

However, LSA-C.C. art. 2334, since 1912 has in part provided that “separate property is that which either party brings into the marriage, or acquires during marriage with separate funds, or by inheritance, or by donation made to him or her particularly.”

The jurisprudence has established that as to immovable property purchased by the husband during marriage, there is an irrebuttable presumption that it is community property unless there is contained in the act of acquisition the double declaration that the property was purchased with funds belonging to him separately, and that it was being acquired for his individual estate. If the purchase was made, however, with separate funds, though absent the double declaration, the community estate is indebted to the separate estate for the amount of the purchase price. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); Succession of Hemenway, 228 La. 572, 83 So.2d 377 (1955); Succession of Chapman, 225 La. 641, 73 So.2d 789 (1954); Lewis v. Clay, 221 La. 663, 60 So.2d 78 (1952); Coney v. Coney, 220 La. 473, 56 So.2d 841 (1952); Bruyninckx v. Woodward, 217 La. 736, 47 So.2d 478 (1950); Slaton v. King, 214 La. 89, 36 So.2d 648 (1948); Sanderson v. Frost, 198 La. 295, 3 So.2d 626 (1941); Succession of Bell, 194 La. 274, 193 So. 645 (1940); Schoeffner v. Schoeffner, 163 La. 142, 111 So. 655 (1927); Succession of Fay, 161 La. 1022, 109 So. 824 (1926); Peters v. Klein, 161 La. 664, 109 So. 349 (1926); Succession of Watkins, 156 La. 1000, 101 So. 395 (1924); Succession of Goll, 156 La. 910, 101 So. 263 (1924); Rodriguez v. Succession of McFettridge, 156 La. 111, 100 So. 68 (1924); Succession of Andrus, 131 La. 940, 60 So. 623 (1913); McWilliams v. Stair, 128 La. 752, 55 So. 343 (1911); Sharp v. Zeller, 110 La. 61, 34 So. 129 (1902); Succession of Burke, 107 La. 82, 31 So. 391 (1902); Succession of Muller, 106 La. 89, 30 So. 329 (1901); Hall v. Toussaint, 52 La.Ann. 1763, 28 So. 304 (1900); Hero v. Block, 44 La.Ann. 1032, 11 So. 821 (1892); Moore v. Stancel, 36 La.Ann. 819 (1884); Durham v. Williams, 32 La.Ann. 162 (1880); Breaux v. Carmouche, 15 La.Ann. 588 (1860); Joffrion v. Bordelon, 14 La.Ann. 618 (1859); Young v. Young, 5 La.Ann. 611 (1850); Barnett v. Barnett, 339 So.2d 495 (La.App. 2nd Cir. 1976); writ denied, 341 So.2d 1127 (La.1977); Primeaux v. Libersat, 307 So.2d 740 (La.App. 3rd Cir. 1975), writ granted 310 So.2d 847 (La.1975), reversed on other grounds 322 So.2d 147 (La.1975); Vicknair v. Vicknair, 284 So.2d 836 (La.App. 4th Cir. 1973); Lazaro v. Lazaro, 92 So.2d 402 (La.App. Orl.Cir. 1957); Thomas v. Thomas, 27 So.2d 758 (La.App. Orl.Cir. 1946).

The same however, does not apply to the wife who purchases immovable property during the marriage. She may assert and prove that the purchase was made with separate funds at any time. Southwest Natural Production Co. v. Anderson, 239 La. 490, 118 So.2d 897 (1960); Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956); Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676 (1946); Succession of Farley, 205 La. 972, 18 So.2d 586 (1944); American Surety Co. of New York v. Noble & Salter, 196 La. 312, 199 So. 131 (1940); Miller v. Miller, 160 La. 936, 107 So. 702 (1926); Kittredge v. Grau, 158 La. 154, 103 So. 723 (1925); Succession of Burke, 107 La. 82, 31 So. 391 (1902).

It is strenuously argued by appellants that prior to Act 170 of 1912 it was only through donation or inheritance that separate property could be acquired during marriage, and that the courts judicially created the additional method of purchase with certain evidentiary requirements. However, since Act 170 of 1912 which amended LSA-C.C. art. 2334 to further allow separate property to be acquired during marriage with separate funds, there was no longer any justification for the double declaration requirement.

It could logically be argued that the Legislature by enacting Act 170 of 1912 overruled the double declaration requirement, but for the legislature’s passive approval of the judiciary’s continued use of this requirement without any expression to the contrary, though LSA-C.C. art. 2334 has been several times amended. Thus-, we conclude the legislature has not overruled the judicially created double declaration requirement.

A more serious attack is made against the jurisprudentially enacted evi-dentiary rule when appellants contest its constitutionality under Article 1, § 2 and § 3 La.Const. (1974) and the Fourteenth Amendment of the United States Constitution. It is argued that the double declaration rule violates the equal protection provisions of both Article 1, § 3 La.Const. (1974) and the Fourteenth Amendment of the U. S. Constitution because the same standard of proof is not applied alike to both men and women.

Our brethren on the Third Circuit in Primeaux v. Libersat, supra, discussed the constitutional issue and using the reasonable basis approach as expounded in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), concluded there was a reasonable basis and held the double declaration evidentiary rule constitutional.

Writs were applied for and granted in Primeaux, supra, however, the constitutional question was not at issue.

Two bases have been established in the jurisprudence for the use of the double declaration rule. As stated in Primeaux, supra:

“One such basis involves public policy and has been recognized by our courts for almost a century, this being the fact of notice to third parties via recordation in the public records. The function of the double declaration is to place the public on guard and on inquiry as to the actual existing facts. Thus they can presume that anything in the name of the husband, without the declaration, is held for the community. Without requiring such a declaration and thus enabling the husband to freely fix at any subsequent time the tenure by which the property is held, the title to such would be ‘an uncertain, floating title, neither advisable nor permissible’. [Footnote omitted.] However, if in turn, the property is in the wife’s name the public cannot presume that it is community property and must investigate. Sharp v. Zeller, 110 La. 61, 34 So. 129 (1902); Succession of Burke, 107 La. 82, 31 So. 391 (1902); Hero v. Block, 44 La.Ann. 1032, 11 So. 821 (1892); Huie at 26 Tul.L.Rev. 446; Wilcox, Civil Law-Comments-The Marital Status of Property Purchase With Separate Funds, 9 Tul. L.Rev. 107, 115.
“Another reason for the distinction stems from the relative positions of the wife and husband in the administration of the community. Inasmuch as the husband is given extensive powers of control over the community, the wife in turn must have counter-balancing protections. One such protection is the ‘double declaration’ by the husband in order that there is reliable evidence of his intention at the time of the purchase. If the husband did not have to make it clear at the time of purchase that the property acquired was his separately, but could do so at a later date, it might well happen that the husband would leave this declaration to a subsequent time, when the value of the investment was determined. For example: If the property diminished in value, or a debt on it fell due, the husband could claim it was community property and therefore the community would be liable. He could further materially injure the wife’s rights in the community assets if the property increased in value. Sharp v. Zeller, supra; Metcalf v. Clark, 8 La.Ann. 286 (1853); Bass v. Larche, 7 La.Ann. 104 (1852); dissent in Hollier v. Fontenot, supra; Huie at 26 Tul.L.Rev. 446; Wilcox at 9 Tul.L.Rev. 116.”

We are of the considered opinion that a closer examination of each basis will prove that there is no true rational justification.

NOTICE TO THIRD PARTIES VIA RECORDATION IN THE PUBLIC RECORDS. The husband can lease, mortgage or sell community property without the wife’s authority or consent unless it stands in the name of both the husband and wife or it is declared to be the family home. LSA-C.C. art. 2334. As far as the public is concerned, it is not whether it is separate or community property, but rather which spouse is authorized to alienate the property. We can reason not how the double declaration rule aids in determining who shall sign. The absence of the double declaration conclusively presumes it to be community property, however, the reverse is not true. The mere insertion of the double declaration does not benefit the husband with a conclusive presumption that it is separate property. There is a presumption that it is separate, but it is a rebuttable presumption. Regardless whether it be separate or community, the husband can alienate the property except as provided in LSA-C.C. art. 2334.

FLOATING TITLE THEORY. Though this term of art is mentioned in the first basis in Primeaux, supra, it properly belongs to the second. The apparent concern of the Courts is that since the husband as head and master of the community has such extensive administrative powers, the wife is at an extreme disadvantage. Rather than allowing the husband to pick and choose at a later date which of several pieces of immovable property were purchased by him for his separate estate, vis-a-vis the community estate, the rule provides that he should declare his intentions at the time of the purchase. It is argued that this will disallow the husband at a later point in time to pick the better of several investments to be in his separate estate. This argument, however, assumes the double declaration presumes the property separate without any additional proof.

We strongly disagree with this approach. Simply because the husband as head and master of the community acts for the community in making investments does not place him at a distinct advantage over the wife in determining at any particular point in time which prior investment shall fall into his separate estate without sufficient proof that separate funds were used for the purchase. If the husband cannot show by a preponderance of the evidence that his separate funds were used to purchase a particular piece of immovable property, then he loses, and the property falls into the community. To deny him the opportunity to offer this proof is to deprive him of the same opportunity given the wife.

It seems to this Court that there is a fear that doing away with the double declaration doctrine will cause problems. Courts will be called upon to determine whether the husband has offered sufficient proof, but those same courts are called upon to determine whether the wife has offered sufficient proof to show that property purchased by her without any declaration at all is separate property. This has caused no problems for the courts.

Other than merely saying that the husband’s administrative control over the community is a rational basis, there is no reasonable rational basis. We conclude, therefore, that the application of such a rule denies to the husband the equal protection of the laws guaranteed to him by both the Louisiana and the United States Constitutions.

As far as this Court can determine, the constitutional validity of the double declaration rule has only been presented to the Louisiana Supreme Court in the case of Barnett v. Barnett, supra, wherein by refusing writs, the Supreme Court affirmed the constitutional validity.

In the absence of Barnett v. Barnett, supra, and irrespective of the long line of jurisprudence upholding the double declaration rule, we would declare such a rule unconstitutional however, as an intermediate appellate court, we are mandated to follow the decisions of our Supreme Court. As we said in O’Connor v. Terry, 346 So.2d 739 (La.App. 1st Cir. 1977):

“Where the jurisprudence is clear and unmistakable, this court has no authority to change the policy thereby established. In such instances, it is the duty of intermediate appellate courts to follow the law as established by the decisions of the Supreme Court. * * * Assuming, ar-guendo, we disagreed with the jurisprudence in this regard, we are compelled to follow what is obviously a clear expression of our Supreme Court. Pringle-Associated Mortgage Corporation v. Eanes, 254 La. 705, 226 So.2d 502 (1969).”

The Supreme Court in Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216 (1970) lectured the intermediate appellate courts and said that a departure from settled jurisprudence should not be undertaken by an intermediate court, that it must recognize its obligation to follow the settled law of this state, and that in the absence of statute, the law is what the Supreme Court says it is.

Thus, it is not within this Court’s power to overrule our Supreme Court, and we, therefore, must reluctantly hold the property purchased by the deceased falls within the community regime existing at the time of the purchase.

ERRORS NO. 2, 3 & 9

The Trial Judge in his written reasons for judgment concluded that the February 9th sales of property to be simulated sales, there being no consideration paid nor any intention of transferring title from Mr. Phillips to his daughters. In order to determine whether a sale is simulated or not, the court must determine whether the parties acted in good faith, whether there was an actual intention to transfer title, and whether any consideration was given for said transfers.

If any consideration is given no matter how small, there is under the jurisprudence and law of Louisiana, a confirmation of the reality of the sale. Russell v. Culpepper, 344 So.2d 1372 (La.1977); Bagala v. Bagala, 237 La. 60, 110 So.2d 526 (1959); Pilcher v. Gillen, 314 So.2d 741 (La.App. 1st Cir. 1975), writ refused, 320 So.2d 202 (La.1975). In Russell v. Culpepper, supra, the Supreme Court said:

“A transaction will not be set aside as a simulation if any consideration supports the transaction, because the reality of the conveyance is thus established.”

The record reveals that there was a true intention on the part of Mr. Phillips to vest title to his property in his only heirs, Irene and Carolyn June. He had been attempting to transfer title since September of 1972. The sales on February 9,1973 also include the requisite delivery of consideration. There were notes executed by each of the vendees at the time of the sales and none had been cancelled by the vendor prior to his death.

A sale where consideration is given by the execution of valid promissory notes is sufficient to meet the requirement for payment of consideration. Freeman v. Woods, 1 So.2d 134 (La.App. 2nd Cir. 1941). The record establishes that no payments were made on the notes prior to Mr. Phillips’ death; however, the notes are still valid and the defendants have not been relieved of their obligation to make the payments. The obligations owed to the deceased are collectible by the administratrix of the succession. LSA-C.C.P. art. 3211.

Based on the facts that the notes were issued and are collectible by the succession representative, we find the Trial Court erred in holding the sales to be simulated; the intention of the parties being to transfer title and valuable consideration being given.

Since we find the sales to be true or valid sales rather than simulations, it logically follows that they would not be donations in disguise as found by the Trial Judge.

This Court having concluded the sales to be valid, can find no authority to return to the wife one-half of the actual property sold. The Supreme Court in the case of Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956) held:

“The law does not give to a wife, who has sustained injury by a conveyance of community property in fraud of her rights, a right of action for rescission of the transaction—such as the revocatory action available to creditors for the purpose of setting aside the fraudulent conveyance of their debtors.”

The record reveals that the disposal of the wife’s share of the community for a minimal consideration and the intentional concealment of those sales by Mr. Phillips, i. e. the listing agreement, is a fraud of Mrs. Phillips’ rights. A fraud of the wife’s rights under paragraph 4 of article 2404 does not make the sale simulated but gives the wife an action against the husband or his heirs for the loss sustained from said sales. This Court in Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968) relying on Thigpen, supra, said that “a husband who has sold or disposed of community property by fraud, to injure his wife, is liable to the wife for one-half of the value of the property disposed of.”

Appellee introduced two real estate experts who placed the value of the property at the time of the sale to be from $599.00 up to $700.00 per acre. This Court finds the value of the property at the time of the sale to be $650.00 per acre.

We hold that the defendants, Irene and Carolyn June, possess valid title to that property transferred to them on February 9, 1973, less any reduction in the amount of the property transferred that may be covered by the declaration of homestead. They are however, as heirs of Griffin Phillips, liable to Myrtle Phillips for the value of her half of the community property sold in fraud of her rights. On remand, the Trial Judge shall determine the amount of this liability after disposing of the issue as to the amount of land covered by the declaration of homestead, should that amount exceed 5 acres.

ERROR NO. 4

Appellee contends that the Trial Judge erred in concluding that there were valid leases from 1967 to 1974 inclusive. From 1967 through 1972 the record contains the written and recorded leases which required Louis Nereaux, Jr. to pay rent and perform other services. We hold these leases to have been validly executed and complied with.

As to the period from 1973 to 1974 the Trial Court held “the cattle lease was recon-ducted tacitly in 1973.” The record confirms this ruling and thus, we find no error. LSA-C.C. art. 2688.

The Trial Judge in his written reasons for judgment found that:

“In 1974, Mr. Nereaux made arrangements to purchase the seventy (70) head of cattle from Griffin Phillips, the decedent, for Fifteen Thousand ($15,000.00) Dollars cash. The money was borrowed from the bank and turned over to Mr. Phillips, who endorsed the check and actually consummated the sale by his actions.”

Louisiana Civil Code Article 2456 provides that:

“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

From the facts presented, we find Louis Nereaux, Jr. to have been the lawful owner of the cattle from January 30, 1974 until the date of retrocession of the sale, December 2,1975. The effect of the rescission of a sale is to abrogate the contract placing the parties in the same status quo as prior to the aborted sale. In the case of Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir. 1976) our brethren on the Third Circuit concluded that:

“A sale which has been rescinded, voluntarily or otherwise, ceases to exist . When a sale is rescinded the parties are returned as nearly as possible to the situation as it existed prior to the sale.”

The Act of Retrocession executed by Louis Nereaux returning the 70 head of cattle to the estate of Griffin Phillips must also include the calves produced by those cattle. LSA-C.C. art. 500.

Since Mr. Nereaux subsequently purchased the herd of cattle from the estate of Griffin Phillips in October of 1976, this Court finds that the succession of Griffin Phillips is entitled to those calves or their equivalent value, produced during 1974 and 1975, that being 50 calves per year as calculated by the Trial Judge on a yearly production basis.

Appellee argues that the calves have produced calves which belong to the estate; however, we find in the record that the 1976 sale of the cattle included the yearlings and thus any calves produced belonged to their owner at that time, Mr. Louis Nereaux, Jr. We concur with the Trial Judge’s findings as to the calf crop produced.

ERROR NO. 5

Appellants argue that the declaration of homestead executed by the appellee is invalid since at the time the declaration was filed she was not living with her husband. We disagree. In the case of Azar v. Azar, 185 So.2d 113 (La.App. 4th Cir. 1966) the Court found that the wife’s declaration of homestead filed one day prior to the judicially determined date of separation was effective even though she had not been physically living in the home on the date of the declaration. The Court stated that:

“The state of living together as man and wife is largely a matter of intention and not wholly determined on constant physical presence of the parties together in the same house.”

In the facts of this case it is even clearer that the intentions and actions of Mrs. Phillips were such that she had no intention of not continuing to live with Mr. Phillips on the date she filed the declaration since she returned to the home and continued to live there.

As concerns the public records, the wife is considered as a third party being encumbered by prior recorded documents. Watson v. Bethany, 209 La. 989, 26 So.2d 12 (1946). Being equated to a third party, the wife’s declaration of homestead takes effect as to subsequent recorded documents from the date of its recordation. It is therefore clear that the recordation of the sales, recorded on February 20, 1973, are burdened by the prior recorded declaration of homestead.

Under LSA-R.S. 9:2802 the wife has a right to prevent the sale of the family home by making a declaration of homestead, but this declaration is limited to 20 acres in the rural area and one lot or lots in urban areas.

The record reveals, and appellee admits that the Phillips’ home lies in an incorporated area, however, the record fails to reveal whether it is located on a subdivided lot or lots, or whether it is located on acreage. It is our opinion that if it is located on a lot or lots, then the declaration' of homestead is limited to the lot or lots. However, if it is located on acreage, then the declaration of homestead is limited to that acreage within the incorporated area of Rosedale, not to exceed 20 acres. Therefore, since sufficient evidence does not exist in the record, this matter must be remanded for the introduction of additional evidence so as to allow the Trial Judge to make a determination of how much property is burdened by the declaration of homestead.

ERROR NO. 6

Absent a clear showing of abuse of discretion the assessment of expert fees by the Trial Judge will not be disturbed by this Court. Blaise Parking and Enterprise Corp. v. Project Square 221, 349 So.2d 387 (La.App. 4th Cir. 1977). The appellant has failed to demonstrate any abuse by the Trial Judge; therefore, we find no error in the Trial Court’s assessment of expert fees.

ERROR NO. 7

Also within the discretion of the Trial Judge is the assessing of court costs and this Court will not interfere with that discretionary determination unless the appellant or appellee demonstrates abuse of the assessment. Town of Kinder v. Beauregard Electric Co-operative, Inc., 339 So.2d 891 (La.App. 3rd Cir. 1976). Neither party has shown any abuse of discretion and thus, we find no error.

ERROR NO. 8

The courts of Louisiana have held that testimony respecting declarations of persons since deceased is the weakest sort of evidence, but that their statements are admissible as evidence. Larocca v. Ofrias, 231 La. 292, 91 So.2d 351 (1956); Abunza v. Oliver, 230 La. 445, 88 So.2d 815 (1956); Pacholik v. Gray, 187 So.2d 480 (La.App. 3rd Cir. 1966). The Trial Judge in admitting the statements made by the deceased to the witnesses stated “that evidence will be given the weakest possible value by this Court.” (Tr.-612). We can find no error in the Trial Judge allowing statements made by the deceased into evidence.

Therefore, for the above and foregoing reasons, IT IS ORDERED ADJUDGED and DECREED that the judgment of the Trial Court be and it is hereby reversed insofar as it declared the sales from Griffin Phillips on February 9, 1973 to be simulations, and ordering a return of one-half of the property sold therein to his widow; IT IS FURTHER ORDERED ADJUDGED and DECREED that the claim of Myrtle Phillips, widow of Griffin Phillips, against his heirs is hereby recognized, and the Trial Judge is directed on remand to compute and award said claim in accordance with the views expressed hereinabove; IT IS FURTHER ORDERED ADJUDGED and DECREED that this matter be remanded for the purpose of determining the amount of land subject to the declaration of homestead in accordance with the views expressed here-inabove; and IT IS FURTHER ORDERED ADJUDGED and DECREED that in all other respects the judgment of the Trial Court be and the same is hereby affirmed with cost of this appeal assessed against defendants-appellants, jointly, for one-half and against plaintiff-appellee for one-half.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . Five acres were reserved as a homesite in the February 9, 1973 sales.


author: EDWARDS, Judge.

text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 10621.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied May 2, 1978.

      Herschel C. Adcock, E. Wade Shows and Paul R. Baier, Baton Rouge, for appellant.
    Joseph F. Keogh, Baton Rouge, for appel-lee.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This suit is on remand from the United States Supreme Court. Chappelle v. Greater Baton Rouge Airport District, 431 U.S. 159, 97 S.Ct. 2162, 52 L.Ed.2d 223. When the matter was before us previously, we affirmed the judgment of the district court. Chappelle v. Greater Baton Rouge Airport District, 329 So.2d 810 (La.App. 1st Cir. 1976), writ denied 332 So.2d 821 (La.1976).

In its per curiam of May 16, 1977, the United States Supreme Court stated: “The judgment is reversed. Turner v. Fouche, 396 U.S. 346, 361-364, 90 S.Ct. 532, 24 L.Ed.2d 567.” In a separate order the cause was remanded to us for further proceedings not inconsistent with the Court’s opinion in the Turner case.

For convenience and by way of background information, we note that on May 13, 1974, Chappelle resigned as Director of the Greater Baton Rouge Airport District and was appointed to the Commission to fill an unexpired term. Subsequently, the Parish Clerk declared Chappelle’s position on the Commission vacant. The basis for this action was the legal opinion of the Parish Attorney stating that appellant was not qualified to serve as a member of the Commission because at the time of his appointment he owned no property assessed in East Baton Rouge Parish.

Act 151 of 1969 provides for the creation of a “Board of Commissioners” composed of nine members to be appointed by the Parish Council of the Parish of East Baton Rouge, which Board is charged with the responsibility of conducting the affairs of the Airport District as its governing authority. With respect to the composition of the Board, the Act (Sec. 3) in pertinent part provides:

“Such appointees shall be qualified electors in and owning property assessed in East Baton Rouge Parish . . . ”

For reasons stated in our origirift.1 opinion, we found the classification of the Georgia statute which was stricken with unconstitutionality in Turner to be dissimilar to the assessment requirement of Act 151 of 1969 and held the legislative scheme employed under the latter to be constitutional. The United States Supreme Court decreed otherwise.

Accordingly, the question of the constitutionality of Act 151 of 1969 insofar as the same pertains to the ownership of assessed property as a requisite to membership on the Board of Commissioners for the Greater Baton Rouge Airport District is resolved. We, in compliance with the order of remand, declare the property requirement of the subject act to be unconstitutional. Turner v. Fouche, above.

The sole question, therefore, before us now is to what relief is E. C. Chappelle entitled.

Counsel for the Airport Commission contends that the only appropriate and proper proceeding under which Chappelle can enforce his right to a seat on the Commission is in a quo warranto proceeding (C.C.P. Arts. 3901 and 3902).

Counsel for Chappelle submits that he is entitled to a mandatory injunction requiring his reappointment to the ousted position on the basis of the “first available position” theory. Cited as authority is the case of Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8 Cir. 1966).

In our opinion, C.C.P. Arts. 3901 and 3902 are not applicable because Chappelle is not seeking to oust an incumbent Commissioner.

Our research fails to disclose any Louisiana appellate decision involving a factual situation similar to that here presented or a consideration of the equitable doctrine of “first available position.”

The Smith case and those authorities therein cited deal with plaintiffs who have been displaced from occupational positions. To that extent they are distinguishable from the instant controversy. However, it seems only fair and reasonable that when an officer has been ousted from an appointed Board, albeit unsalaried, for unconstitutional reasons, he should have somé relief. In our opinion that relief should be reappointment at a time when it will not displace a person serving under a valid appointment.

There is also a dispute concerning court costs incurred by Chappelle, including the sum of $483.78 relating to costs incurred by him in the United States Supreme Court. Chappelle contends that he is entitled to obtain judgment for all costs incurred in both state and federal courts. The waiver of governmental immunity under La.Const. of 1974, Art. XII, Sec. 10(A), has not had the effect of repealing R.S. 13:4521. Segura v. Louisiana Architects Selection Bd., 353 So.2d 330 (La.App. 1st Cir. 1977), writ granted February 13, 1978. However, he is entitled to recover court costs incurred in the federal court. Humble Pipe Line Co. v. Waggonner, 165 So.2d 316 (La.App. 2d Cir. 1964).

Chappelle also asks that we remand this matter so that he can prove other financial losses and/or damages. This we decline to do. He did not allege monetary losses nor pray for the same in any of his previous pleadings. Further, we do not find that the authorities cited by him are applicable. We therefore specifically exclude this request in our order of remand.

Accordingly, for the above reasons, this matter is remanded to the district court for (1) the purpose of issuing the appropriate injunction directed to the members of the Parish Council of the Parish of East Baton Rouge ordering and directing them to appoint E. C. Chappelle, Jr. to the first available position on the Board of Commissioners of the Greater Baton Rouge Airport District, and (2) for the assessment of court costs consistent with the views hereinabove expressed.

REVERSED AND REMANDED.


author: WATSON, Judge.

text:
    Lou Anna Johnson DUPLECHAIN v. Bertman DUPLECHAIN et al.
    No. 6353.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Rehearing Denied May 9, 1978.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Randall C. Songy, Lafayette, for defendant-appellant.
    Tate & Tate by Donald J. Tate, Mamou, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This is a workmen’s compensation case in which the trial court overruled an exception of prescription and awarded compensation for total and permanent disability. Plaintiff is Lou Anna Johnson Duplechain, who was working at farm labor for her father-in-law, Bertman Duplechain, one of the defendants. The other defendant is Lumberman’s Mutual Casualty Company, the employer’s workmen’s compensation insurer.

It is not disputed that in August, 1974 plaintiff was attempting to load a sack of soybeans, weighing about 60 pounds, when she experienced acute discomfort in her back. She was seen by a general practitioner, Dr. Wayne G. LaHaye, who treated her for a low back strain and hospitalized her from August 25 until September 3, 1974. Dr. LaHaye continued to follow Lou Anna’s condition and recommended on September 17, 1974 that she return to full activity with the exception of heavy lifting. Thereafter he saw her for other medical conditions relating to her gall bladder and not involved in the present litigation.

Lou Anna Duplechain was paid workmen’s compensation benefits by Lumberman’s in the amount of $26 per week through December 25, 1974 at which time payment of weekly benefits was discontinued. According to an exhibit in the record, Lumberman’s # 2, Lou Anna Duplechain deposited the last payment of weekly compensation on December 30, 1974 in her bank account.

Dr. LaHaye saw plaintiff on December 29, 1975, after she had bent over to pick up a toy and experienced severe pain in the lower back which rendered her unable to straighten up or to walk. This second episode of back trouble is the basis of the present litigation because plaintiff was diagnosed by Dr. LaHaye and Dr. F. Lionel Mayer, an orthopedic surgeon, as having a ruptured intervertebral disc. Dr. Mayer operated on Lou Anna Duplechain and found a protruding disc at the interverte-bral space between L-3 and L-4.

Suit was filed in the present proceedings on December 31, 1975, or one day after the one year prescriptive period (LSA-R.S. 23:1209), following receipt of the last payment of compensation on December 30, 1974.

Defendants filed an exception of prescription which was heard but then referred to the merits. Following a trial on the merits, the trial court concluded that plaintiff was totally and permanently disabled as a result of the August, 1974 accident; that her claim had not prescribed because (a) the employer had made payments during the prescriptive year to plaintiff in lieu of compensation and (b) plaintiff continued to have symptoms; and that plaintiff was entitled to compensation at the rate of $42.00 per week for 500 weeks from August 24, 1974 subject to credit for sums paid.

On appeal, counsel for the employer and the insurer specify that the trial court erred in concluding that the ruptured disc of December 29, 1975 was caused by the accident of August of 1974; in holding that the voluntary contributions by the employer to the plaintiff were wages in lieu of compensation which interrupted the running of prescription; and in fixing the daily rate of pay on the basis of a 6-day work week.

Connection Between Accident and Ruptured Disc

The defendants contend that plaintiff did not prove that the ruptured disc found by Dr. Mayer was caused by the accident of August, 1974 and that the trial judge erred in this particular. A review of the medical evidence and the lay testimony convinces us that the trial judge did not err. Dr. La-Haye, who was plaintiff’s attending physician, testified that in his opinion the ruptured disc was “probably related to the trauma” (TR. 74) of the accident. He described Lou Anna’s situation as a “. renewal of her previous back injury rather than a brand new injury.” (TR. 74).

Dr. Mayer, the operating physician, testified that if plaintiff did not have symptoms during the period between the accident and the episode of December, 1975, then it would be unlikely that there was a connection between the two, but, if the plaintiff had back pain during the 14 month interval, there was an increased probability that the two injuries were related. (TR. 90). The lay testimony in the record is to the effect that plaintiff indeed had symptoms during the period between her accident and the episode of December, 1975. Since the testimony reflects the presence of back symptoms, Dr. Mayer’s opinion would be that there was an increased probability that “. . . the two injuries are inter-related ...” (TR. 90).

Therefore, on the basis of the medical evidence and the lay testimony, it appears that there was no error in the trial judge’s conclusion that the ruptured disc was caused by the accident of August, 1974, and in addition it appears that the ruptured disc would constitute a re-manifestation of disability resulting from the same accident.

Later Manifestation of Injury

Under the circumstances, it is unnecessary to consider the second specification of error, having to do with payment of wages in lieu of compensation since under the well-recognized rule, plaintiff’s claim had not prescribed.

“The prescriptive period does not begin to run as to subsequent manifestations of disability until the date of the later manifestation, even though the disability manifested itself at some earlier time and the employee was paid benefits for a previous period of disability.” Payne v. Travelers Insurance Company, 299 So.2d 913, at 915 (La.App. 3 Cir. 1974).

See also Manuel v. Travelers Ins. Co., 46 So.2d 319 (La.App. 1 Cir. 1950) and Croswell v. Wells, 102 So.2d 794 (La.App. 2 Cir. 1958) writ denied.

The trial judge held correctly that plaintiff proved a sufficient connection between the accident of August, 1974 and the ruptured disc of December, 1975 to award compensation under the Workmen’s Compensation Act, and also, since the disc was a later manifestation of the injury, her claim was not prescribed.

Compensation Rate

A serious issue is presented as to the compensation rate. Lumberman’s paid following the accident on the basis of a $40 weekly wage or $26 in weekly benefits. The trial court calculated plaintiff’s weekly rate by noting that the cash wages received by plaintiff were estimated as ranging from $8 to $10 to $12 per day; then concluding that $10 per day is “probably the correct amount” (TR. 17); then multiplying that by a six-day work week and adding an amount for plaintiff’s fringe benefits. The trial court found that the fringe benefits were worth about $100 per month but divided those by five because the household was composed of plaintiff, her husband (who also worked for Bertman Duplechain) and three children, concluding that Lou Anna was entitled to claim Vsth which would be $20 per month or $4.62 per week. Her weekly pay for compensation purposes was held to be $60 plus $4.62 or a total of $64.62. The judgment appealed from provided for weekly compensation benefits of $42.00.

The trial judge erred in concluding that plaintiff’s daily wage was $10 a day. A reading of the testimony of her employer, Bertman Duplechain, indicates that her cash wages were $8 a day. This is confirmed by the information he filed in the employer’s report of injury submitted to the insurance company.

The appellants contend that the present situation is controlled by LSA-R.S. 23:1021(11), as amended in 1968, relative to “Wages”. This amended statute provides for a situation such as presented in the instant case, under subsection (d) which provides for wages paid on “other basis”. Since the only evidence as to Lou Anna Duplechain’s pay is her daily rate plus certain fringe benefits, it is appropriate under subsection (d) of the statute to apply a five-day week in determining her proper wages for compensation purposes. The fact that the record does not establish how many days she worked for employer is immaterial, because we have recognized a daily rate of $8.00 and subsection (d) provides for multiplication by five under all circumstances, putting into effect' a five day week for compensation purposes. Thus, she was receiving a basic wage of $8.00 for five days or $40.00 per week.

Plaintiff is entitled to a greater share of fringe benefits than given by the trial judge. She and her husband both worked for Bertman Duplechain and he gave them $100 per month in fringe benefits. Plaintiff is entitled to one-half of these (rather than one-fifth because the earnings are not attributable to the children) for wage purposes. This would be $50 per month or $11.54 per week.

Therefore, plaintiff was being paid $40 per week plus $11.54 per week in fringe benefits, giving her a total wage of $51.54 for compensation purposes. Her weekly compensation rate, 65% of her weekly wage, would be $33.50. The judgment of the trial court must be amended accordingly.

Therefore, for the reasons assigned, the judgment of the trial court is amended to fix plaintiff’s compensation rate at the sum of $33.50 per week; otherwise the judgment is affirmed.

Costs of the appeal are taxed agamst Bertman Duplechain and Lumberman’s Mutual Casualty Company.

AMENDED AND AFFIRMED.

      . The trial court’s reasons are not entirely clear

      . LSA-R.S. 23:1021(11):
      “(11) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four (4) full weeks preceding the date of the injury or 40 hours, whichever is greater; (b) If the employee is paid on a monthly basis, his monthly salary divided by 4; (c) If the employee is employed at an annual salary, his annual salary divided by 52; and (d) If the employee is employed on a unit, piecework, or other basis, his gross earnings from the employer for the 26-week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said 26-week period and multiplied by 5; provided, however, that if such an employee has worked for the employer for less than a 26-week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by 5.”


author: FORET, Judge.

text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Earl J. GUIDRY et al., Defendants-Appellees.
    No. 6382.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Rehearing Denied May 9, 1978.
    Writ Refused June 30, 1978.
    Landry, Watkins, Cousin & Bonin by Jack J. Cousin, New Iberia, for plaintiff-appellant.
    Hagood & Fitzgerald by David S. Fitzgerald, Jr., Lafayette, for defendant-appel-lee.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   FORET, Judge.

By this action plaintiff-appellant expropriated a servitude for a gas transmission line across certain property of defendant-appellee in Lafayette Parish. The property involved is a 40-acre tract of land, located on a parish asphalt road, just off Louisiana Highway 182, about one or two miles north of the intersection of Louisiana 182 and Interstate 10, north of the City of Lafayette. Appraisers for both the plaintiff and the defendant considered the property suitable for residential homesite development and fixed its value at $5,500 per acre and $6,000 per acre, respectively. The property was already burdened with a 50-foot wide servitude upon which was located a 69,000 volt electric transmission line belonging to Gulf States Utilities Company and which traversed the property on a line practically perpendicular to the parish asphalt road. The servitude expropriated is 20 feet in width, measuring 10 feet on either side of the pipeline, which traverses the property on a line parallel to and 15 feet west of the Gulf States Utilities Company electric line. As observed by defendant-appellee’s appraiser, the servitude expropriated is within the 50-foot wide servitude for the Gulf States Utilities Company electric line.

The trial court was presented two appraisals, one for the plaintiff-appellant and one for the defendant-appellee. The defendant-appellee’s appraisal included an allowance of $9,185 as severance damage to two strips of defendant-appellee’s property, each measuring 250 feet in width and extending along either side of the 50-foot servitude for the Gulf States Utilities Company electric transmission line. The appraiser considered these areas depreciated in value by 30% by reason of the Gulf States Utilities Company electric line, and then again depreciated in value by 30% by reason of plaintiff-appellant’s pipeline. Plaintiff-appellant’s appraiser found that no severance damage would result by reason of the new taking.

The trial court found that plaintiff-appellant’s appraisal failed to take into account relevant factors. It found defendant-appel-lee’s appraisal to be an accurate estimate— that it had taken into account, among other things, the decreasing value of the acreage in closest proximity to the pipeline — and it gave judgment accordingly. Specifically, it awarded $202 as compensation for the servitude expropriated and an additional $9,185.60 as severance damage to the remainder. It also fixed the expert witness fee for defendant-appellee’s appraiser at $950.00, and taxed that amount' as costs against plaintiff-appellant. The trial court did not award an expert witness fee for another witness who had testified on behalf of defendant-appellee, nor did it award any attorney’s fees, as defendant-appellee had requested. Plaintiff has appealed.

On appeal, plaintiff urges that the trial court erred in awarding severance damages without competent evidence, and in adopting the opinion of defendant-appellee’s appraiser when such opinion was not shown to have been based upon any substantial ground.

We find that there is a reasonable evidentiary basis for the trial court to have concluded this matter in the way that it did. There is no doubt in our minds that there was some severance damage to defendant-appellee’s remaining property as a result of the taking. We cannot say that the trial court abused its discretion in setting the severance damage to be 30% of the value of two strips of property 250 feet wide on each side of the servitude taken. To do so would be substituting our own judgment for that of the defendant’s appraiser and the trial court. We find no manifest error in the ruling of the trial court on that score.

Defendant-appellee has answered the appeal asking for damages for a frivolous appeal. We find no merit in defendant’s contention that the appeal was frivolous.

Defendant further asks that the trial court judgment be modified to include an expert witness fee in the amount of $1700 for Dr. Hunter Shirley, a psychologist, who had testified as an “expert witness”. The rule of law, in this connection, is that in determining the fee, if any, to be allowed an expert, consideration must be given to the question of whether the preparatory work done by the expert was reasonably necessary, and whether the preparatory work and testimony given was reasonably necessary and useful in determining the award to be made. State, Dept. of Hwys. v. Gordy, 322 So.2d 418 (La.App. 3 Cir. 1975), writs refused 326 So.2d 370; State, Department of Highways v. Colby, 321 So.2d 878 (La.App. 1 Cir. 1975), writs refused 325 So.2d 278. Apparently the trial court did not find that the testimony of Dr. Shirley was useful because it is nowhere mentioned in the trial court’s reasons for judgment, nor was an award made for his fee in the judgment. The failure of a trial court judgment to mention a particular demand is tantamount to a denial of that demand. Sewell v. Southwest Argonaut Ins. Co., 355 So.2d 585 (La.App. 3 Cir. 1978, our docket number 6324). In our opinion the value of psychologist testimony in a case such as this, is of dubious value.

Defendant next alleges that the trial court erred in not awarding reasonable attorney fees to the defendant, relying on La.R.S. 19:8 which says in part:

“If the highest amount offered is less than the consideration awarded, the court may award reasonable attorney fees.”

Without discussing the matter any further, we note that the statute says that the court may award reasonable attorney fees. The question therefore, of whether or not to award attorney fees, is discretionary with the court, and we cannot say that the trial court abused its discretion in not awarding attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

AFFIRMED.