author: LANDRY, Judge.

text:
    Mrs. Patsy W. TEMPLE, Individually, etc., et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 10290.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 19, 1976.
    Arthur B. Haack, W. P. MacMurdo, Baton Rouge, for appellants.
    Robert J. Vandaworker, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This matter is before us on remand from the Honorable Supreme Court, State of Louisiana, with directions to render judgment herein on the quantum of damages due plaintiffs Patsy W. Temple, Forrest Keith Temple, Kim Renee Temple, and Kerri Lynne Temple, widow and children, respectively, of decedent, Billy Ray Temple, for the alleged wrongful death of said decedent resulting from injuries sustained in an automobile accident. See Temple v. Liberty Mutual Insurance Company, et al, Numbers 56,803 and 56,928, rendered by the Supreme Court on February 23, 1976, La., 330 So.2d 891, rehearing denied May 14, 1976.

The Supreme Court order of remand mandates this court to “exercise its constitutional duty to review the law and facts and thereafter render a judgment on quantum based upon the merits, determining whether the jury has abused the “much discretion” that the law accords it in awarding damages”.

Decedent was 40 years of age when he died on February 28, 1973, of injuries sustained in an accident which the trial jury and this court found to have resulted from the negligence of an insured of defendant Liberty Mutual Insurance 'Company. Mrs. Temple, the surviving widow was 36 years old when decedent died. The children, Forrest Keith, Kim Renee, and Kerri Lynne were 17 years and ten months, 15 years and nine months, and 13 years and six months of age when their father expired.

For a period of approximately 16 years, terminating approximately 2 years before his death, Decedent was primarily employed as a photo-engraver by a Baton Rouge newspaper. During this same period decedent also did part time work as a pipe-fitter welder. From these combined sources decedent earned approximately $10,000.00 annually. About two years before he died, decedent resigned his employment with the newspaper and began part time work with a photo-engraving firm operated by a friend and known as Graphic Color Center, which concern had its principal place of business in Baton Rouge. During the years 1972 and 1973, decedent worked as a pipe-fitter welder in addition to his work with Graphic Color Center. Decedent’s income tax return for the year 1972 shows gross earnings in the sum of $13,099.00 of which amount $2,241.94 was earned by Mrs. Temple as a bookkeeper. In 1973, decedent reported earnings of $9,000.00. Mrs. Temple explained this reduction in income was due to decedent having worked only 9 months of the year, the remainder of which he spent in an extended vacation. During the two years decedent worked for Graphic Color Center, immediately preceding his death, he received some cash income for services rendered the corporation. He was also issued some corporation stock, apparently in part for funds invested in the corporation and in part for services rendered. Approximately one year before decedent died, the corporation moved from Baton Rouge to North Carolina. Mrs. Temple testified the corporation owed decedent additional stock for services rendered but that shares in payment had never been issued. The record does not indicate the status of the corporation since its move out of the state. Neither is the value of decedent’s stock shown. It is conceded no dividends have ever been received on the stock. The record is silent as to the present or future prospect of stock dividends or earnings.

Mrs. Temple and the children testified that the family was close knit; that decedent was a devoted father and husband as well as a good provider; that the family acted in concert in such matters as church attendance and engaging in recreational activities of common interest to all and in which all could participate. Neighbors and acquaintances attested that decedent was a highly religious and moral individual; that decedent was well read; that decedent spent considerable time counseling and advising his children; and that decedent was very close to his children.

However, Mrs. Temple conceded she and decedent had been separated three times during their married life, once for a period of approximately six weeks, the last separation having occurred in May, 1973. She added that during these periods of separation she and decedent saw each other quite a bit and frequently spent the night together.

The trial jury awarded Mrs. Temple damages in the amount of $411,500.00 and awarded each child recovery in the sum of $111,500.00 with no attempt at itemization of the various elements of damages for which recovery was granted.

Pursuant to instruction from the Supreme Court we take cognizance of and apply the rule that awards for damages lie within the much discretion of the trier of fact and are not to be disturbed on appeal except on a clear showing of an abuse of such discretion. Fox v. State Farm- Automobile Insurance Company, La., 288 So.2d 42; Walker v. Champion, La., 288 So.2d 44; Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351.

We are also mindful of the principle that awards in similar cases of this nature do not provide a scale of uniform awards in other cases involving comparable injuries, but serve only as aids in determining whether a particular award is so greatly disproportionate to awards for truly similar injuries or losses that an abuse of discretion is thereby shown. Walker and Anderson, above.

We note that in each instance Fox, Walker and Anderson, above, involved an award to a living person for personal injuries sustained. Fox involved a whiplash injury for which an award of $25,000.0Q was reduced to $10,875; Walker was concerned with the loss of an eye for which an award of $100,000.00 was decreased to $35,000.00; and Anderson dealt with a hand injury for which a judgment of $25,000.00 was pared to $10,000.00. In each case the Supreme Court ordered restitution of the original award.

In its instruction to this Court the Supreme Court clearly indicated that insofar as concerns recovery for decedent’s alleged pain and suffering, the rule announced in Andrus v. White, La.App., 101 So.2d 7, is controlling, which rule provides as follows:

“If there was a scintilla of evidence of any suffering or pain on the part of the deceased by his actions- or otherwise during his unconscious hours from the time he was injured until his death we would not hesitate to affirm or increase, if the evidence justified, the award for this item. We cannot assume nor substitute an unsupported belief that he must have suffered, in the absence of competent testimony that should and could have been produced if it were true.”

Additionally the Supreme Court cited numerous authorities for the proposition that recovery for pain and suffering of a decedent is warranted where the record contains evidence that the decedent made noises and movements indicating his sensitivity to and awareness of pain, though unconscious.

In fixing the awards for loss of support herein we assume a 25 year work life expectancy for decedent which would carry to decedent’s 67th year. Based on his earnings as welder-pipefitter during the calendar year 1972, in the approximate sum o-f $11,000.00, decedent’s highest earning year shown, we calculate decedent had a potential lifetime earning capacity of $275,000.00. Admittedly, this figure does not include wage increases which have become the rule in our present day economy, especially in the construction trade in which decedent was engaged. On the other hand, our computation makes no reduction for income taxes, social security payments and other deductions from income which have become part of our present day economy. Moreover, we consider that the amount awarded will be receivable at present in a lump sum and may be invested, at least in part, to earn interest as income. Considering all aspects of this case we find Mrs. Temple is entitled to the sum of $105,000.00 for the loss of income and support she could have expected. We believe any award in excess of this sum would constitute a clear abuse of the discretion involved in matters of this nature.

Considering the award for pain and suffering endured by decedent, we note the testimony of Thomas L. Tyler, who was among the first to reach the accident scene. Tyler stated he found decedent slumped over on the front seat of decedent’s vehicle. He noted decedent making gagging sounds similar to snoring. He also stated he noted signs of life exhibited by decedent until Tyler and a friend, Tommy Caves, left the scene to summon the police and an ambulance. He did not know how long decedent’s signs of life continued. An investigating officer, Ray Farris, testified he was informed by a fellow officer, Shirley, that Shirley had observed decedent move or make a sound or something to that effect. Decedent was pronounced dead on arrival at the hospital. Mrs. Temple testified that upon viewing decedent’s body in the morgue a few hours after the accident, decedent’s facial expression evidenced pain similar to what she had noticed when decedent endured pain while living. Under the circumstances, we find evidence to support the conclusion that decedent suffered conscious pain for which recovery should be awarded in the sum of $10,000.00 of which sum Mrs. Temple is entitled to receive $2,500.00.

Deducting our award of $105,000.00 for loss of support, and $2,500.00 for Mrs. Temple’s share of the award for decedent suffering, would leave an award of $304,000.00 for loss of love and affection if the jury award were allowed to stand.

The difficulty in making awards for the loss of love and affection resulting from the death of a spouse is graphically illustrated in two recent cases. In Tillman v. Canal Insurance Company, La.App., 305 So.2d 602, a widow of a man of decedent’s approximate age was granted $35,000.00 for the loss of her husband’s love and affection. However, in Cacibauda v. Gaienne, La.App., 305 So.2d 572, a 53 year old widow of a deceased 52 year old husband was awarded $95,000.00 for loss of love and affection.

We deem an award to Mrs. Temple in the sum of $304,000.00 for loss of love and affection would be inordinately disproportionate to awards heretofore made in similar cases. We deem an award of this magnitude to be totally unsupported by the record before us which, among other things, establishes a marital history involving three separations, one of which occurred approximately one year prior to decedent’s death. We find, however, the record supports an award of $40,000.00 to Mrs. Temple for this item of damages. The record also establishes funeral expenses and other special damages totalling $2,009.10 which Mrs. Temple is entitled to recover. We find Mrs. Temple entitled to a total award of $149,509.10.

We find no basis in the record for allowing recovery for loss of income predicated upon decedent’s earnings from photo engraving work.

Forrest Keith Temple, attained majority three months after his father’s death. At the time of trial this young man was employed and also attending college as a student of electrical engineering. Irrespective of the needs of one’s children, recovery for loss of a parent’s support may be predicated only upon the parent’s demonstrated ability to provide that support. We find an award of $8,000.00 to Forrest Keith Temple will adequately compensate him for this loss.

In the cases of Kim Renee and Kerri Lynne Temple, we find an award of $12,500.00 and $20,000.00, respectively, will adequately compensate these parties for the loss of income and support resulting from decedent’s demise. In addition, the children are each entitled to the sum of $2,500.00 as their share of the award for decedent’s pain and suffering.

The foregoing awards to the children would leave recovery of $89,000.00 to Forrest Keith Temple; $96,500.00 to Kim Renee Temple; and $89,000.00 to Kerri Lynne Temple, for loss of the love and affection of decedent if the jury awards were allowed to stand. Such awards we deem greatly disproportionate to recent awards in cases dealing with similar circumstances.

In our judgment no mathematical ratio may be employed to determine whether an award is so disproportionate to similar awards as to constitute an abuse of the much discretion vested in the trier of facts. In other words, an award which is three, four or five times prior awards in similar cases involving a like or identical loss or deprivation, may not constitute an abuse of discretion under the facts of a given case, and therefore not be reducible. On the other hand, however, an award which is only double or less than twice prior awards for a comparable injury or loss, may constitute an abuse of the discretion vested in the trier of facts. In this instance we find the trier of facts has abused its discretion in making the awards granted herein.

The circumstances considered, we deem an award to each child in the sum of $30,000.00 for the loss of decedent’s love and affection will provide adequate compensation for this item of damages. We therefore find Forrest Keith Temple entitled to a total award of $40,500.00; Kim Renee Temple entitled to a total of $45,000.00; and Kerri Lynne Temple entitled to $52,500.00.

It is ordered, adjudged and decreed that the judgment of the trial court be amended to reduce the award to Mrs. Patsy W. Temple from $411,500.00 to $149,509.10; to reduce the award to Forrest Keith Temple from $111,500.00 to $40,500.00; to reduce the award to Mrs. Patsy W. Temple, Tu-trix of the Minor Kim Renee Temple from $111,500.00 to $45,000.00; and, to reduce the award to Mrs. Patsy W. Temple, Tu-trix of the Minor Kerri Lynne Temple from $111,500.00 to $52,500.00. In all other respects the judgment of the trial court is affirmed, all costs of these proceedings to be paid by defendant Liberty Mutual Insurance Company.

Amended and affirmed.


source: Caselaw Access Project

author: COVINGTON, Judge:

license: Public Domain

text:
    The BOARD OF TRUSTEES OF the EAST BATON ROUGE MORTGAGE FINANCE AUTHORITY, etc. v. ALL TAXPAYERS et al., etc.
    No. 10785.
    Court of Appeal of Louisiana, First Circuit.
    March 12, 1976.

      Steve E. Hicks, Baton Rouge, for plaintiff-appellee-appellant.
    John E. Seago, Baton Rouge, for defendant-appellee Allie P. Landry, III.
    Jonathan C. Harris, pro se, Baton Rouge, defendant-intervenor-appellant-appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

Jonathan C. Harris, appellant, was permitted to appear as a defendant in a suit brought by the Authority’s motion for judgment, although his petition to intervene was denied. The purpose of the Authority’s action, under LSA-R.S. 13:5121-5130, was to enable it to obtain a judicial determination of the validity of the bonds authorized to be issued by the said Authority and to resolve related matters in order to insure the marketability of its bonds in the national investment channels.

Harris filed peremptory exceptions of no right of action, no cause of action, and lack of an indispensable party in the lower court. Without ruling on said exceptions, the lower court rendered judgment in favor of the defendant taxpayers, etc., dismissing the demands of the Authority on the ground that the bonds were invalid because they had not been previously submitted to the State Bond Commission as required by law, but decreeing that the Authority was legally created and that Ordinance Number 4327, adopted by the East Baton Rouge City-Parish Council on August 14, 1974, was constitutional.

Harris moves this Court for an order allowing him to file a peremptory exception, embracing the objections of no right of action, no cause of action, and nonjoinder of an indispensable party. The authority moves this Court to dismiss the appeal of Harris, which motion Harris opposes, and for preferential docketing of the Authority’s appeal. Thus, we have appeals by both parties, and motions filed by each of them.

PEREMPTORY EXCEPTION

The Court may, sua sponte, notice the objections raised by the exception filed herein; see LSA-C.C.P. art. 927. It does not matter that the lower court did not rule upon them.

In Pogue v. Ray, 272 So.2d 454, 457 (La.App. 2 Cir. 1973), we find:

“Although the record does not show that the trial court considered or ruled on the exception of no cause of action filed by defendants . . ., under the provisions of La. C.C.P. Article 927, this court has authority on its own motion to take notice that the petition and attached documents do not disclose a cause of action.”

See also Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4 Cir. 1973), writ denied, 290 So.2d 899 and 901 (La.1974); Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3 Cir. 1972).

If we may do so on our own motion, then certainly a party is permitted to move our attention thereto. Accordingly, the Court permits the filing of the peremptory exception.

MOTION TO DISMISS THE APPEAL

As a taxpayer, property owner and citizen of the Parish of East Baton Rouge, Harris qualifies as a named defendant in the proceeding; LSA-R.S. 13:5123. The fact that the trial court technically denied his intervention in no way affected his appearance as a defendant,

Under the express language of LSA-C. C.P. art. 2086:

“A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.”

Also, see State ex rel. Broussard v. Gauthe, 265 So.2d 828, 835 (La.App. 3 Cir. 1972), writ denied 263 La. 105, 267 So.2d 211; Vincent v. Cooper, 24 So.2d 503, 507 (La.App. 1 Cir. 1946).

Accordingly, the motion to dismiss the appeal of Harris is denied.

MOTION FOR PREFERENTIAL DOCKETING

The Authority further moves for preferential docketing of its appeal on the ground that LSA-R.S. 13:5121-5130 authorize the granting thereof. We observe that § 5128, dealing specifically with appeals, reads in part as follows:

“If the appeal be timely and otherwise in conformity herewith and if the appellate court allows the same it shall be given preferential docketing.”

Therefore, the granting of the motion lies within the sound discretion of this court.

The paradoxical action of the Authority is perplexing. The record reveals that the Reasons for Judgment were filed on October 31, 1975; yet, the judgment was not signed until January 14, 1976,' or some ten weeks later. If in fact the matter was of such urgency as to warrant the Authority’s request, it should have been more diligent in taking steps necessary to prosecute its appeal by presenting the judgment' for signature promptly. We do not look favorably on this procedure of undue delay coupled with a request for preference.

DECREE

IT IS ORDERED, ADJUDGED AND DECREED that the motion to file the peremptory exception is hereby granted, and that the motions to dismiss the appeal and for preferential docketing are hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs incident to the motion to file the exception, the motion to dismiss the appeal, and the motion for a preferential docketing are assessed against the Authority insofar as the law permits.


text:
    The BOARD OF TRUSTEES OF the EAST BATON ROUGE MORTGAGE FINANCE AUTHORITY, Acting as the Governing Body of Said Authority v. ALL TAXPAYERS et al., etc.
    No. 10785.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Steve E. Hicks, Baton Rouge, for plaintiff-appellant-appellee.
    John E. Seago, Baton Rouge, for defendant-appellee Allie P. Landry, III.
    Jonathan C. Harris, pro se, defendant intervenor, appellant-appellee, Baton Rouge.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Board of Trustees of the East Baton Rouge Mortgage Finance Authority, Acting as the Governing Body of Said Authority, (Authority) appeals from judgment dismissing its action, brought pursuant to La.R.S. 13:5121-5130 (Act No. 385 of 1972), to establish the validity of $1,000,000.00 in bonds which Authority proposes to issue as an alleged governmental unit. Appeal was also taken by Jonathan C. Harris (Interve-nor), as a named defendant, from the trial court’s judgment decreeing Authority to be a legally created body fulfilling a valid public purpose as a public trust and decreeing further that Ordinance Number 4327 of the East Baton Rouge Parish Council (Council), adopted August 14,1974, is valid and constitutional.

We affirm the trial court’s dismissal of Authority’s suit for reasons different than those found by the lower court and reverse that part of the trial court’s judgment granting declaratory relief in favor of Authority.

This action was brought by motion for judgment filed by Authority on May 28, 1975 pursuant to the procedure for determining the validity of bonds issued by governmental units under the provisions of La. R.S. 13:5121-5130 (Bond Validation Law). Authority’s motion for judgment alleges Authority to be the governing body of a public trust duly created in conformity with the provisions of La.R.S. 9:2341-2347 (Public Trust Act, as enacted by Act 135 of 1970), by execution of the Indenture of Trust, on August 14,1974, by Royal American Corporation, as Grantor or Settlor, and seven named individuals as Trustees. On the same day the Council, as governing authority of East Baton Rouge Parish (Parish) adopted Ordinance Number 4327 accepting beneficial interest in the public trust entitled “East Baton Rouge Mortgage Finance Authority” thereby constituting and establishing the Council and Parish as beneficiary of the trust, all in accordance with the provisions of Public Trust Act, particularly La.R.S. 9:2342. Several weeks thereafter, the Mayor-President, as chief executive officer of the Parish, signed the acceptance of beneficial interest in the Authority as created by the Indenture.

Authority’s motion for judgment also alleges that Authority is the governing body of a governmental unit, as the term is defined in La.R.S.- 13:5121, and as such brings this action against all tax-payers, property-owners and citizens of the Parish, including non-residents owning property or subject to taxation therein, and all other persons interested in or in any way affected by the issuance of Authority’s Mortgage Finance Bonds, 1975 Series A (Bonds), in the aggregate principal sum of $1,000,-000.00, to establish the validity of all proceedings taken in connection with the issuance and authorization of the bonds, and also to establish the principle that the interest income received by holders of the Bonds is exempt from state income taxation.

The motion for judgment further alleges that Authority was created for the public purpose of expanding the supply of funds available in the Parish for new mortgage loans, thereby promoting the welfare of Parish residents by providing funds for their acquisition of residential properties, thus stimulating home ownership and the economy of the Parish. Authority asserts its intent to make funds available to lenders for the financing of homes for credit-worthy persons and families of low and moderate income, to alleviate the shortage of adequate housing for such persons and families in the Parish. Next, Authority avers its purpose to seek effective participation in its program by lenders on terms which restrict the financial return and benefit of lenders to the extent necessary and reasonable to induce lender participation.

To fulfill the foregoing purposes, Authority alleges its right and power to issue Bonds pursuant to the Indenture agreement to provide financing for Authority’s objective, which Bonds are obligations of Authority payable out of funds, assets or revenues of Authority and which Bonds cannot in any event constitute obligations of the State or Parish or be secured by pledge of the credit or taxing power of the State or Parish.

Authority avows its aim, pursuant to the Indenture, to issue bonds in the sum of $1,000,000.00, in denominations of $5,000.00 dated February 1, 1975, bearing interest at 7% per annum, payable February 1 and August 1 of each year, the interest on which is allegedly exempt from state income taxation. It is also asserted that Authority has confected binding contracts with lenders in the aggregate of $900,-000.00, which agreements are to be funded from the proceeds of the Bonds.

The foregoing allegations are followed by Authority’s request that the trial court order publication of the motion in accordance with the provisions of La.R.S. 13:5124 and, after due hearing, render judgment declaring that the Bonds would be valid and legally binding obligations of Authority when issued, that all legal requirements and proceedings have been met to empower Authority to execute and deliver the Bonds and that the interest to be paid holders of the Bonds would be exempt from state income taxes.

On May 28, 1975 the trial court entered the requested order for publication and fixed the matter for hearing on June 11, 1975. Before the scheduled hearing date, Allie P. Landry, III (Defendant), asserting a substantial interest in the action predicated on his being a resident and taxpayer of the Parish, answered the action by way of a general denial. Defendant’s answer raises numerous procedural and constitutional issues, none of which pertain to the issue upon which we decide this matter, namely, that Authority has no right of action in that Authority does not come within the class of litigants entitled to proceed under the Bond Validation Law.

By a joint stipulation entered of record on July 11, 1975, Authority and Defendant stipulated that Authority is a duly created public trust within the terms of La.R.S. 9:2341-2347, and a governmental unit as defined in La.R.S. 13:5121(2). Additionally, the stipulation contains acknowledgments which in effect concede the veracity of all averments of Authority’s motion. On July 23, 1975, the matter was taken under advisement by the trial court, after submission of memoranda of authorities by Authority and Defendant.

On September 19, 1975, while the matter was still under advisement, Intervenor attempted to intervene in the suit, alleging himself to be a member of defendant class specified in La.R.S. 13:5124. Intervenor raised numerous exceptions to Authority’s action, including an exception of no right of action on the ground that Authority is .not a “governmental unit” as defined in the Bond Validation Law (La.R.S. 13:5121 et seq.). On this basis Intervenor contends that Authority is not within the class of litigants authorized to proceed under the Bond Validation Law. On September 19, 1975, the trial court denied Intervenor’s petition of intervention on the ground that the intervention was untimely filed. However, on September 25, 1975, the trial court granted Intervenor’s oral motion to be enrolled as a party defendant in this matter.

Judgment was rendered by the trial court on January 14, 1976, decreeing Authority a legally created body and declaring Parish Ordinance Number 4327, adopted August 14, 1974, constitutional and valid. However, the decree rejected with prejudice Authority’s prayer for validation of the proposed bond issue. On January 23,1976, the trial court amended its judgment to decree Authority a legally created body fulfilling a valid public purpose while performing an authorized and public function of its beneficiary, the Parish, and to declare Parish Ordinance Number 4327, adopted August 14, 1975, constitutional and valid.

From the foregoing judgments Interve-nor appealed devolutively and Authority appealed suspensively. In this court Inter-venor, as a member of the defendant class named in Authority’s motion, filed the following peremptory exceptions: (1) No right of action on the ground that Authority is not a governmental unit within the definition of that term as contained in La.R.S. 13:5121; (2) No cause of action because of the failure of Authority’s motion to assert consent and approval of the State Bond Commission for the issuance of the Bonds, despite Authority’s allegation that Authority is a governmental unit; (3) No cause of action on the ground that Authority fails to allege facts which establish Authority as a political subdivision or a non-profit corporation created or governed by a duly constituted political authority, as required by the Bond Validation Law, but rather that Authority’s pleadings and attachments reveal Authority to be a private enterprise; and (4) Lack of an indispensable party in that the State of Louisiana was not joined to contest the alleged non-taxability of bond interest for state income tax purposes.

In this court, Authority moved to dismiss Intervenor’s appeal on grounds that Inter-venor had no standing to appeal because Intervenor failed to timely answer Authority’s action as provided by La.R.S. 13:5126 and also because the petition of intervention was rejected by the court below. By judgment rendered March 12, 1976, we denied Authority’s motion to dismiss the appeal of Jonathan C. Harris in its entirety. See La.App., 336 So.2d 303. In effect we dismissed Harris’s appeal as Intervenor but maintained his appeal as a named defendant. In oral argument before this court, Harris concedes his petition of intervention was properly dismissed by the trial court. As noted in our disposition of the motion to dismiss Harris’s appeal, Harris has the right to appeal as a party defendant.

Authority contends that the trial court erred in holding that the Bonds proposed to be issued by Authority are invalid without prior consent and approval of the Commission for the issuance of the Bonds pursuant to La.Const.1974, Art. VII, Sec. 8(B). Harris’s appeal is predicated on the peremptory exceptions filed in this court and further challenges the validity of the trial court’s modification of the judgment originally rendered below. Since we find the exception of no right of action well founded, we pretermit consideration of all other issues raised herein.

The Bond Validation Law’s announced intent is to establish an equitable and expeditious procedure for obtaining judicial validation of bonds issued by governmental units as defined in La.R.S. 13:5121(2) which reads as follows:

“2. ‘Governmental unit’ means the State of Louisiana, municipalities, parishes, parish and municipal school boards. and districts, levee boards and districts, housing authorities, bridge authorities, community improvement agencies, redevelopment agencies, all other political subdivisions of the state, units of local government and nonprofit corporations created by or governed by the governing authoritiés of parishes or municipalities, any special service districts, such as water, sewerage, garbage and lighting districts created by or pursuant to legislative acts and any other districts, boards, - authorities, and agencies of the State of Louisiana authorized to issue bonds.”

More particularly, the legislative intent-of the Bond Validation Law is expressed in La.R.S. 13:5122 which provides that all actions for validating bonds of governmental units shall be brought only under the provisions of that statute. Section 5122 also states that all laws in conflict with the statute are superseded save for certain exceptions which are not germane to the present case. Section 5122, also pertinently states:

“It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to bonds is necessary to insure the marketability of bonds in investment channels.”

Unless Authority falls within the ambit of the Bond Validation Law, it has no right to proceed thereunder and therefore has no right of action to invoke its provisions.

Authority maintains that it qualifies as a governmental unit as defined in La.R.S. 13:5121(2) because it is an agency of the State of Louisiana, authorized to issue bonds. This contention is predicated upon the provisions of La.R.S. 9:2344 which declares that the trustee or trustees of a public trust shall be an agent of the state.

An exception of no right of action is a peremptory exception, La.Code Civ.Pro. Art. 927, and as such may be pled on appeal, La.Code Civ.Pro. Art. 2163. The exception of no right of action filed by defendant Harris must be considered and disposed of in the light of certain well established applicable rules of statutory construction.

The paramount consideration in a case involving statutory interpretation is ascertainment of the legislative intent and reason or reasons which prompted the legislature to enact the law. Courts construe a statute to accomplish the purpose for which it was enacted and to give effect to the legislative will therein expressed. Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336; Johnson v. Sewerage District No. 2 of Parish of Caddo, 239 La. 840, 120 So.2d 262. In determining legislative will and intent, the meaning of a word, clause or sentence in a statute must be decided in the light of the statute as a whole so that the entire law may be construed in harmony with its objects and purposes as therein announced. Danna v. Commissioner of Insurance, La.App., 228 So.2d 708; Washington Parish Police Jury v. Washington Parish Hospital Service District No. 1, La.App., 152 So.2d 362.

In statutory interpretation, broad and comprehensive language not reasonably intended to apply to a particular situation must be restricted within narrower limits than its words import, if the court is satisfied that their literal meaning would extend the effects of the statute to cases or circumstances which the legislature did not intend to include. Bonnette v. Karst, 261 La. 850, 261 So.2d 589, and cases therein cited.

Considering the Bond Validation Law in its entirety we conclude that the legislature intended to include within the term “governmental unit” only the state and such political subdivisions, commissions, authorities, and other similar agencies of the state having' authority to issue bonds paid from public revenue sources or secured by the pledge of the full faith and credit of the state or some political subdivision or agency of the state. We so find because the hereinabove quoted language appearing in Section 5122, namely “. . . with due regard for the public fisc . . .” indicates legislative intent to limit the statute’s scope to bond issues which are part of the public fisc. Appellants affirmatively allege the proposed bonds will not be payable from the proceeds of a tax or property assessment and that they will not be secured by the pledge of the full faith and credit of the state or any political subdivision thereof. On the contrary, Appellants’ motion avers the bonds will be payable solely from funds generated by Appellants, the sources of which are shown by the pleadings to be the activities and financial arrangements of private individuals and a public trust created by these same parties. These private parties and the trust are solely responsible for payment of the bonds in question. No public funds will be employed to retire the bonds, neither will the full faith and credit of any governmental entity be pledged to secure their payment, either directly or indirectly.

Our conclusion is fortified by the nature of the defendant classes which must be included in an action under the Bond Validation Law as required by La.R.S. 13:5123, which provides in part as follows:

“. . .In such motion for judgment the taxpayers, property owners and citizens of the issuing governmental units, including nonresidents owning property or subject to taxation therein, and all other persons interested in or affected in any way by the issuance of such bonds shall be made parties defendant.”

We can perceive no reason why taxpayers and nonresidents owning property in a governmental unit should be made defendants in an action to validate bonds proposed to be issued by the unit when the property of such nonresidents or taxpayers could not possibly be affected by the bond issue.

It is readily apparent that Authority is not a municipality, parish, school board or district, levee board or district or bridge authority. Neither is Authority a housing authority, community improvement agency, redevelopment agency or other political subdivision of the state, unit of local government or nonprofit corporation, all of which must be created or governed by the governing authority of a parish or municipality to qualify as a governmental unit under the statute. Neither can Authority be considered a special service district created by or pursuant to legislative act.

We find that Authority is not a “governmental unit” within the purview of the Bond Validation Law unless it falls within the final category included therein as:

“. . . and any other districts, boards, authorities, and agencies of the State of Louisiana authorized to issue bonds.”

Although La.R.S. 9:2344 declares the trustee or trustees of a public trust shall be an agent of the state, we find that close scrutiny of the statute reveals its intent to apply only to agencies, subdivisions and departments of the state requiring approval of the State Bond Commission because of some possible or eventual liability or involvement of the public fisc. In this regard we note that the Supreme Court has held that bonds issued by public trusts do not require prior consent and approval of the State Bond Commission. Bertrand v. Sandoz, 260 La. 239, 255 So.2d 754.

It is also a fundamental rule of statutory construction that the meaning of a word or phrase may be ascertained by the meaning of other words or phrases with which it is associated. Under the doctrine of noscitur a sociis and ejusdem generis, general words such as “other, etc.”, following an enumeration of particular or specific classes or things are to take color from the specific, so that the general words are restricted to a sense analogous to the less general. Therefore the general words should be applied only to such classes of things of the same general kind as those specifically enumerated. B. W. S. Corporation v. Evangeline Parish Police Jury, La.App., 293 So.2d 233.

Applying the foregoing rule of statutory construction, we note that all other entities listed in the definition of governmental unit contained in subject statute are either created or governed by the state or a parish or are agencies created pursuant to legislative act. In each of the enumerated categories the governmental unit is one which involves the public fisc in that each is an agency which issues bonds payable from public revenues or taxation, or which pledge the full faith and credit of the state or a political subdivision to further secure payment. We think it reasonable to presume that the legislature intended the concluding category found at the end of the definition of “governmental unit” to refer only to districts, boards, authorities and agencies possessing the same characteristics as those previously enumerated.

We conclude that the exception of no right of action filed herein by defendant Harris, is well taken and must be sustained because Authority does not fall within the classification of parties entitled to proceed under the Bond Validation Law. It follows that Authority’s motion must be dismissed, with prejudice.

Since Authority has no right to proceed in the manner chosen herein, the judgment of the trial court declaring Authority a legally created body fulfilling a valid public purpose while performing an authorized and public function of its beneficiary, and declaring East Baton Rouge Parish Ordinance Number 4327, adopted August 14, 1975, constitutional and valid, must be annulled, reversed and set aside, and Appellants’ motions, in this regard, dismissed as of non-suit.

It is ordered, adjudged and decreed that the judgment of the trial court dismissing Authority’s motion for validation of the bond issue proposed by Authority, be and the same is hereby affirmed and Authority’s motion, in this respect, be and the same is hereby dismissed and rejected with prejudice.

It is further ordered, adjudged and decreed that the judgment of the trial court decreeing Authority a legally created body fulfilling a valid public purpose while performing an authorized and public function of its Beneficiary, East Baton Rouge Parish, and also declaring East Baton Rouge Parish Ordinance Number 4327, adopted August 14,1975, constitutional and valid, be and the same is hereby annulled, reversed and set aside and Authority’s motion, in this regard dismissed as of non-suit. All costs of these proceedings to be paid by Authority-

Affirmed in part, reversed in part and rendered.


author: PONDER, Judge.

text:
    BISHOP HOMES, INC., et al. v. James A. DEVALL.
    No. 10775.
    Court of Appeal of Louisiana, First Circuit.
    June, 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Cordell H. Haymon, Baton Rouge, for defendant-appellant.
    William C. Bradley, Baker, for plaintiffs-appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs-appellees, Bishop Homes, Inc. and Robert Leland Morgan, are plaintiffs in this petitory action, seeking to be recognized as owners of a track of land described as the West One-Half (W V¿) of Section 37, Township 9 South, Range 3 East, Southeastern District of Louisiana in Ascension Parish, containing forty-eight and one-tenth acres. The defendant-appellant, James A. Devall, was admitted to be possession of the entire tract. in

Devall filed an exception of res judicata and equitable estoppel and expressly pleaded acquisitive prescription of ten and thirty years. The exceptions of res judicata and equitable estoppel were overruled. The exceptions of prescription were denied after trial on the merits.

The exceptions of res judicata and judicial estoppel were based upon the fact that in 1958 a suit was filed by the Morgan faction, in essence claiming ownership of the tract. This suit was subsequently dismissed because of abandonment. The exceptions were properly overruled. An abandoned suit cannot form the basis of a plea of res judicata, City of New Orleans v. Westwego Canal & Terminal Co., 206 La. 450, 19 So.2d 201 (1944). The same reasoning would apply to a plea of judicial estop-pel.

Trial was held in District Court on February 1,1974. However, because of failure of recording equipment, the case was tried again on April 2, 1974. On November 12, 1974, the trial court signed judgment recognizing plaintiffs-appellees as owners in indi-visión of the disputed tract. Devall has timely appealed suspensively. We reverse.

Louisiana Code of Civil Procedure Article 3651 provides that “The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.” Louisiana Code of Civil Procedure Article 3653 provides, in part, that “To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall: (1) Make out his title thereto, if the court finds that the defendant is in possession thereof . . . ”. According to Pure Oil v. Skinner, La., 294 So.2d 797 (1974), a plaintiff in a petitory action makes out his title when he proves his ownership either by an unbroken chain of valid transfers from the sovereign or an ancestor in title common with the defendant. Acquisitive prescription of ten or thirty years will suffice.

Plaintiffs-appellees attempted to prove their case by showing a valid record title, instead of by acquisitive prescription. They did not plead prescription, and when counsel for defendant timely objected to the introduction of evidence on this issue, plaintiffs-appellees admitted that they were limited to proving their case by valid record title. Nevertheless, the trial court admitted the evidence, solely for the restricted purpose of rebutting defendant-appellant’s contentions of acquisitive prescription, expressly recognizing that the pleadings would not be enlarged.

The lower court held that “the plaintiffs established a clear and unbroken chain of title to the property in dispute going back more than one hundred years prior to the institution of this litigation.”

We find this to be insufficient under Pure Oil Company v. Skinner, supra. There is no common ancestor in title. There is a gap in plaintiffs’ chain of title from 1850 back to the original sovereign grant, on which there is considerable doubt since there is only a reference to a grant by “her majesty the Queen of Spain” to one Mathias Martinez. It is doubtful that the property descriptions in the earlier deeds include the property in litigation. The inclusion of the property in a partition sale after a succession in 1909 is of doubtful validity.

We find too that plaintiff relied entirely upon record title and that evidence objected to and admitted solely for the purpose of disproving defendant’s possession did not have the effect of enlarging the pleadings. We therefore cannot accept plaintiffs’ contention that they have proved title by ten and thirty years’ prescription.

But even if it be held that plaintiffs have established their title either by record title or prescription it would give them little solace because defendant-appellant has acquired ownership of the disputed tract by ten year acquisitive prescription.

Civil Code Article 3478 provides in part: “He who acquires an immovable in good faith and by just title prescribes for it in ten years.”

Article 3479 provides:

“To acquire the ownership of immovables by the species of prescription which forms the subject of the present paragraph, four conditions must concur:
1. Good faith on the part of the possessor.
2. A title which shall be legal, and sufficient to transfer the property.
3. Possession during the time required by law, which possession must be accompanied by the incidents hereafter required.
4. And finally an object which may be acquired by prescription.”

It is admitted that the defendant and his mother have been in possession for over ten years; this satisfies condition 3 of C.C. Art. 3479. It is not contended that immovables may not be acquired by prescriptions; this satisfies condition 4. We are therefore concerned only with conditions 1 and 2, that is, good faith and legal and sufficient title.

Good faith is defined in Civil Code Article 3451 as follows:

“The possessor in good faith is he who has just reason to believe himself the master of the thing which he possesses, although he may not be in fact; as happens to him who buys a thing which he supposes to belong to the person selling it to him, but which, in fact, belongs to another.”

Civil Code Article 3481 provides:

“Good faith is always presumed in matters of prescription; and he who alleges bad faith in the possessor, must prove it.” Defendant’s mother purchased a sizeable

tract of land on July 26,1955, part of which was described as “A certain tract of land, together with all buildings and improvements thereon and thereto belonging, situated in the Parish of Ascension, about three miles South of the site of Old Galvez Town, and known and general (sic) referred to as the Lusk or Adam Sides tract of land, and containing 169.35 acres, more or less, and being more particularly described as being situated in Section 49 Township 8 South Range 3 East, and in Section 37, Township 9 South, Range 3 East, Southeastern District of Louisiana, and being the westerly portions of said Sections, and being bounded, by now or formerly as follows: North by Walker A. Kelly; East by Estate of H. A. Morgan, South by Estate of H. A. Morgan and S. H. Parker; West by S. H. Parker, L. P. St. Amant and Robert E. Lee Mayer.” (Emphasis supplied)

Defendant-appellant took possession of the land and placed cattle on the disputed tract immediately after the act of sale was completed. In 1956 defendant procured the services of a surveyor to survey his mother’s holdings preparatory to erecting fences. After some investigation, the surveyor told defendant-appellant that there might be another claimant to the land. The surveyor was given an extra $100 to check out the title to the disputed tract. A dispute arises as to what, if anything, defendant-appellant was told. In any event, the surveyor’s map, filed October 19, 1956, indicates that the disputed tract belonged to the mother. A suit was filed in 1958 by the Morgan faction, in essence, contending ownership of the tract. However, this suit was subsequently dismissed because of abandonment. On June 27, 1967, defendant-appellant purchased the disputed property from his mother.

The trial court held that defendant-appellant was in bad faith for three reasons:

1. He was put on notice by the surveyor in 1956 that the Morgans claimed the property.

2. He knew of the 1958 Morgan suit, and their claim to the property before he purchased it from his mother in 1967.

3. “He had a title examination made prior to his purchase in his mother’s name, and even a very cursory title examination must have revealed that (1) the parish map hanging on the wall in the conveyance office shows the West Half of Section 37 as belonging to H. Arthur Morgan, (2) the assessor was assessing the West Half of Section 37 to the Morgans who were paying the taxes thereon, and (3) the Morgan property referred to in the defendant’s description as being the boundary of his tract specifically included title to the West Half of Section 37.”

Reasons one and two are contrary to established law. Knowledge of the Morgan’s claim after the July 26,1955, purchase is irrelevant in considering Mrs. Devall’s good faith. Louisiana Civil Code Article 3482 expressly provides that, “It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.” Furthermore, Devall’s knowledge of any defect in title becomes immaterial if Mrs. Devall was in good faith at the time of her purchase. Devall v. Choppin, 15 La.Ann. 566 (1840); Brewster v. Hewes, 113 La. 45, 36 So. 883 (1904); Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922).

Therefore, the real issue as to good faith, is whether or not defendant-appellant or his mother knew of the Morgans’ claim prior to the act of sale. As stated above, the trial judge found bad faith because of a title examination before the sale.

A person is not required to examine public records and thus determine validity of title to immovable property he contemplates purchasing as a condition precedent to good faith. Board of Commissioners of the Port of New Orleans v. Delacroix Corporation, 274 So.2d 745 (La.App. 4th Cir. 1973). But if he does make a title check he is charged with what the title check shows.

The record does not support the conclusion that a title examination was made prior to the purchase. The only hint that there was is found in defendant-appellant’s answers to questions propounded by the trial judge:

JUDGE: “But you didn’t make any investigation to determine whether or not that claim was good?
DEVALL: “Well, I had figured I had went to the full end of the law. I had spent money to have it surveyed. I had spent money to have it looked up. And I was spending money buying it. So that’s as far as I knew I could go.
JUDGE: “Now, you say spend money having it looked up. You mean what you paid the surveyor?
DEVALL: “Yeah, I had to . . . yeah, I had to cough up another $100 there. Had to come back over.
JUDGE: “Did you pay an attorney to make a title examination?
DEVALL: “Yeah, I paid.”

The question as to payment to an attorney is found amidst repeated questioning as to the surveyor’s title check. It is obvious that defendant-appellant was not referring to an attorney’s title examination, but to the surveyor’s title check which was made over a year after the purchase. Why would defendant-appellant have paid a surveyor an extra $100 in 1956 for a title check if an attorney had already examined the title in 1955? Furthermore, there is no evidence whatsoever as to when the attorney’s title examination was made and the burden of proof was on plaintiffs-appellee to show the “alleged” examinations was made before the act of sale. See Sarpy v. Kliebert, 250 So.2d 182 (La.App. 1st Cir. 1971); C.C. Art. 3481.

We therefore conclude that plaintiffs-appellees have not overcome the presumption of good faith established by Civil Code Article 3481 and that defendant-appellant and his mother were in good faith when the tract was purchased in 1955.

POSSESSION BY GOOD TITLE

The Civil Code articles setting forth the requirements for just title provide as follows:

Article 3484:
“By the term just title, in cases of prescription, we do not understand that which the possessor may have derived from the true owner, for then no true prescription would be necessary, but a title which the possessor may have received from any person whom he honestly believed to be the real owner, provided the title were such as to transfer the ownership of the property.”
Article 3485:
“And in this case, by the phrase transfer the ownership of the property, we understand not such a title, as shall have really transferred the ownership of the property, but a title which by its nature, would have been sufficient to transfer the ownership of the property, provided it had been derived from the real owners, such as a sale, exchange, legacy or donation. “Thus, prescription could not be acquired under a title resulting from a lease or loan, because these contracts do not transfer the ownership of the property.”
Article 3486:
“It is necessary besides:
1. That the title be valid in point of form; for if the possession commenced by a title void in that respect, it can not serve as a foundation for prescription.
2. That the title be certain; thus, every possessor, who can not fix exactly the origin of his possession, can not prescribe.
3. That the title be proved; for as it consists in a fact, it is not presumed, and every man who founds his title on a written instrument must produce it, or prove the contents, if it be lost.” Plaintiffs-appellees contend defendant-

appellant’s mother did not possess by just title because her title is not certain, or definite since the property description of an author-in-title is allegedly based entirely on the location of an oak tree which is impossible to find, the description of one of his authors-in-title refers to land in Section 27 instead of 37; and the defendant-appellant’s description refers to Morgan property as being its southern boundary.

Generally, for a party to acquire title, the description in his deed must be such that the property intended to be conveyed can be located and identified. The description must appear within the four corners of the instrument itself, or the deed should refer to some map, plat or deed as part of the description, so that the identity of the property conveyed is definite and certain. Where the deed is partially defective or erroneous as to description, it is nevertheless susceptible of conveying property provided the property intended to be transferred can be ascertained with certainty with the aid of such extrinsic evidence as is admissible under the rules of evidence. J. H. Jenkins Contractors, Inc. v. Farriel, 246 So.2d 340 (La.App. 1st Cir. 1971); Cupples v. Harris, La., 11 So.2d 609 (1942). Finally, a deed sufficient to convey property as between the parties is also sufficient to support a claim of acquisitive prescription. Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974).

The title of defendant-appellant and his authors-in-title meet these requirements. Contrary to the contentions of plaintiffs-appellees, none of the title descriptions in defendant-appellant’s chain of title is dependent on the location of an oak tree.

All the title descriptions throughout the chain refer to the land as the Adam Sides or Lusk tract. Attached to the 1946 sale from Ida Borman Banta to Camille John is a “true and literal exemplification of the record on file” in the State Land Office of a patent granted to Adam Sides. This exemplification shows that Sides property was patented in 1812, consisting of 338.68 acres measuring ten arpents by forty arpents in Section 49, Township 8 South, Range 3 East and Section 37, Township 9 South Range 3, East. The plat on the grant unmistakably shows that Sides was patented a full 94.03 acres in Section 37. Analysis of this patent leads to the conclusion that the Sides’ patent includes all of Section 37. Therefore, in spite of a technical typographical error in one of defendant-appellant’s authors-in-title, the record indicates that defendant-appellant’s authors-in-title actually had title to all of Section 37.

Furthermore, the emphasis that the trial judge and plaintiffs-appellees place on defendant-appellant’s title listing Morgan property as its southern boundary is not well-founded. The titles refer to the tract of land as being bound on the “South by .the' Estate of H. A. Morgan and S. H. Parker; West by S. H. Parker . . .”.

The maps in evidence show the general layout of the property to be as follows:

Had it been intended to convey none of Section 37, there could have been no contiguity of lands owned by S. H. Parker (evidently now J. LeBeau, as shown on the maps). The reference to lands of Estate of Morgan and S. H. Parker leads to the conclusion that the sale of all of the west half of Section 37 was intended.

Therefore, we conclude that defendant-appellant’s mother possessed just title to the West-Half of Section 37.

Because we find the requisite good faith and just title we find that defendant-appellant’s mother acquired the West-Half of Section 37, Township 9 South, Range 3 East, Southeastern District of Louisiana, in Ascension Parish, by ten year acquisitive prescription.

For the above and foregoing reasons we reverse and render.

It Is Therefore Ordered, Adjudged and Decreed that judgment be rendered in favor of defendant, James A. Devall, and against plaintiffs, Bishop Homes, Inc. and Robert Leland Morgan, declaring James A. Devall to be owner and titleholder of the following described property:

“A certain tract or parcel of ground, together with all buildings and improvements thereon, shown on a ‘Map Showing Survey of Tracts ‘A’, ‘B’, ‘C’, ‘D\ ‘E’ and ‘F’, Located in Section 49, Township 8 South, Range 3 East, and Sections 37 and 2, Township 9 South, Range 3 East, Southeastern District of Louisiana, in the Parish of Ascension, Louisiana, for H. Arthur Morgan Estate,’ said map having been prepared by Joseph I. Turney, C.E. dates Baton Rouge, Louisiana, March 14, 1961 (a copy of said map being on file and of record in the official records of Ascension Parish, Louisiana) as TRACT ‘F’; “Said tract ‘F’ being more particularly described according to said map as containing forty-eight and Vio (48.1) acres, and being the West One-Half (W V¿) of Section 37, Township 9 South, Range 3 East, Southeastern District of Louisiana in Ascension Parish.”

REVERSED AND RENDERED.

      . The filing of this suit did not interrupt prescription. Louisiana Civil Code Article 3519 provides “If the plaintiff in this case, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the interruption is considered as never having happened.”

      . Defendant-appellant contends that the property was originally purchased in his mother’s name solely for his interest, and that he was the true purchaser in the 1955 sale. We find that defendant-appellant did not sufficiently prove this contention. In any event, he was acting as his mother’s agent in the transaction. Therefore under agency principles, she would be bound by any knowledge he might have had of the Morgans’ claim prior to the act of sale.

      . Because of this finding, we do not find it necessary to discuss the good faith of Mrs. Devall’s predecessors in title.

      . “A certain piece or parcel of real estate in the Parish of Ascension, Louisiana, situated about three (3) miles south of the site of Old Galvez-town, and known and generally referred to as the “LUSK” or “ADAM SIDES” tract of land, and according to the survey of B. Lafon, dated at Galvestown, La., on the 16th day of Nov. 1803, said tract of land being designated as follows, to-wit: As a starting point start at a certain black or pin oak, said black or pin oak being numbered ninety-six (96) on the map showing the field notes of Robert Boyd, D.S., made on the 26th day of December, 1871, and from that point running south east forty ar-pents, twelve degrees, ...then running north east ten arpents, seventy-eight degrees, _then running north west forty arpents, twelve degrees, and there striking an ash tree as a comer post, then running south west ten arpents, seventy-eight degrees to the pin or black oak being the point of starting. At the time of said survey said land being in the County of Iberville, Louisiana. Now being situated in Townships Eight (8) and Nine (9) Three (3) East, S.E.D.E. of River St. Helena Meridian in Ascension Parish, Louisiana.”

      . Plaintiff-appellees’ own abstract shows Sides as patentee of Section 37.

      . Although the present maps do not show the land of Parker, it is obvious that the tract formerly owner by Parker is what is known as the LeBeau tract. This is necessarily so by implication because the Morgan and Parker tracts were contiguous (both tracts bounded the property in defendant-appellant’s chain on the same side), and the Morgan and LeBeau tracts are contiguous.


author: CHIASSON, Judge.

text:
    NEW YORK LIFE INSURANCE COMPANY et al. v. GULF STATES UTILITIES COMPANY. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY v. GULF STATES UTILITIES COMPANY.
    Nos. 10763, 10764.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Frederick R. Tulley, Baton Rouge, for appellants.
    George P. Bevan, Baton Rouge, for Nat’l Life.
    John Dale Powers, Baton Rouge, for N. Y. Life.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is an appeal of judgments rendered in consolidated actions. In the first action, New York Life Insurance Company and Home Life Insurance Company, appellees, brought an action against Gulf States Utilities, appellant, to recover $13,154.18 the ap-pellees had mistakenly paid the appellant. In the second action, National Life and Accident Insurance Company, appellee, brought an action against Gulf States to recover $6,533.23 paid in mistake. The District Court granted recovery in both actions and Gulf States has appealed.

In July, 1974, the appellees filed foreclosure suits against the mortgagors of the Broadmoor Plantation Apartments. As a result of these suits the three phases of this apartment complex were seized by the Sheriff on July 10 and 11 and First National Mortgage Corporation was appointed custodian.

At the time of the seizure the appellants were owed, on account, $19,687.41 for electric service to the three phases of the complex from May 11, 1974 to July 11, 1974. This account was in the name of LeBlanc Properties. Upon receiving notice of this debt and, prior to the Sheriff’s sale on August 21, 1974, the custodian paid the amount due. It is undisputed that this debt was not the debt of appellees, but the debt of another. The amount paid was deducted from the revenue received after seizure by the custodians as agent for the appellees. It is this payment appellees seek to recover.

The Trial Judge in his Written Reasons for Judgment summarized the evidence as follows:

“Mrs. Carleen Bitter, the manager of the apartments, testified she was told, evidently about July 25th, by Mr. Hereford that the bill was in arrears and that immediate payment was necessary to keep service in effect. She forwarded the bills to First National Mortgage Corporation which had been appointed custodian when the property was seized. She was at some disadvantage since Gary Le-Blanc had taken all records with him. She had no authority in regard to paying the bills.
Russell Foti, vice-president of First National Mortgage Corp., testified that upon his being told of the conversations of Mrs. Bitter with Mr. Hereford and Mrs. McAn-drew he told his superior that the power would be turned off if the bills were not paid, whereupon checks for $1,728.23, $516.61, $4,288.39 and $13,154.18 were paid to Gulf States Utilities for the benefit of the plaintiffs herein. His company never assumed responsibility for the bills incurred prior to July 11th.
Mrs. McAndrew testified that she called Broadmoor Apartments about July 25th in regard to the delinquent account but did not threaten cessation of service.
Van B. Hereford testified he sent a registered letter to LeBlanc Properties (Gulf States-1) threatening discontinuance of service but made no other threat, since there was no need. There was never any discussion as to who owed the bill.”
The Trial Judge also found:
“Furthermore, as was testified to by Mr. Foti, the foreclosures in the Baton Rouge area were unusual. Without research on the point it might well be thought that the custodian and mortgagees would be responsible under the circumstances.”

The Trial Court held that under Civil Code Articles 2302 and 2310 that the appellees were entitled to recover the payments made in mistake.

The errors assigned by the appellant are:

“1. The Trial Court committed manifest error in holding as a matter of law and fact that the payments were not made to satisfy either a natural or a civil obligation owing by the plaintiffs to Gulf States resulting from the benefits received by plaintiffs.
“2. The Trial Court committed manifest error in finding as a matter of fact and law that the electric bills were paid under mistake and are therefore recoverable by plaintiffs from Gulf States.
“3. The Trial Court erred in failing to hold that the plaintiffs had failed to prove by a preponderance of the evidence that the payments were made under duress.”

A civil obligation is a legal tie, which gives the party, with whom it is contracted, the right of enforcing its performance by law. Civil Code Article 1757. Appellant had no right to force the appellee to pay the debt of LeBlanc Properties. Therefore, payment was not made to satisfy a civil obligation.

A natural obligation is one which can not be enforced by an action, but which is binding on the party who makes it, in conscience and according to natural justice. Civil Code Article 1757. “Natural obligations are, in the first place, duties founded on a juridical cause of a nature sufficient to generate a right to a performance for the benefit of one person and against another.” Aubry & Rau, Droit Civil Franpais, Obligations, 1 Civil Law Translations § 297. Inherent to any natural obligation is a duty sufficient to generate a right of performance. The seizure of the mortgaged property by the appellees did not create a duty to pay the debts of the former owners. Because there was no duty owed the appellant by the appellees the payment was not made to satisfy a natural obligation.

As a corollary to the argument that the appellees are denied a right of recovery because the payments were made to satisfy a natural obligation, the appellant contends that the appellees can not recover their payments because this recovery would be an “unjust enrichment” of the appellees.

“Actions for restitution are predicated on quasi-contractual obligations deriving from the unjust enrichment of the defendant at the expense of the plaintiff. The Louisiana Civil Code, while recognizing the principle of unjust enrichment, has not institutionalized the rules governing restitution. Following the Model of the French Civil Code, the Louisiana Code merely regulates one instance of unjust enrichment, the payment of a thing not due. Article 2301 states that one receiving something not due incurs an obligation to return it, and Article 2302 makes the right of recovery conditional on ‘payment’ through ‘mistake.’ ” Yiannopoulous, 25 Louisiana Law Review 589, 648.

Recovery for “unjust enrichment” is regulated in the present case by Civil Code Article 2301 et seq. The Trial Court found that the evidence showed the payments of the appellees were made in mistake and that under the above articles appellees were entitled to recover their payments.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Company, La., 283 So.2d 716, 724 (1973). The record contains sufficient evidence to support the Trial Court’s conclusion.

Because the appellees are entitled to recovery of their payments to appellant under the provisions of the Civil Code dealing with payment of a thing not due it is not necessary that this Court determine whether the evidence could support a conclusion that the payments were made under duress.

For the aforegoing reasons the judgments of the District Court in the consolidated actions, namely: “New York Life Insurance Company, Et Al. vs. Gulf States Utilities Company,” No. 10,763, and “National Life and Accident Insurance Company vs. Gulf States Utilities Company,” No. 10,764, are affirmed. Cost to be paid by appellant.

AFFIRMED.

      . At the time in question, Mrs. Bitter was acting as manager for the custodian, First National Mortgage Corporation. Prior to to the seizure, she had been manager for LeBlanc Properties.

      . Civil Code Article 2302 provides:
      “He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.”

      .Civil Code Article 2310 provides:
      “He who, through mistake has paid the debt of another to whom he believed himself indebted, has a claim to restitution from the creditor. This right ceases, if, in consequence of the payment, the creditor has destroyed or parted with his title; but the recourse still remains to the person paying against the true debtor.”


author: EDWARDS, Judge.

text:
    Harvey HENRY v. Bernard A. REMBERT.
    No. 10815.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Keith M. Whipple, Houma, for appellant.
    Sidney C. Sundbery, Houma, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Harvey Henry filed suit against Bernard A. Rembert for specific performance of a contract to exchange immovable property and for recognition of his right to a gratuitous servitude of passage over the property to be exchanged by him to Rembert. The trial court granted specific performance of the contract, ordered the exchange, and granted a gratuitous servitude of passage. Rembert timely appealed the judgment.

Appellant Rembert specifies as error the ruling of the trial judge ordering specific performance and also the granting of the gratuitous servitude.

The facts found in the record disclose the following: By letter of September 20, 1972 appellant offered to appellee to exchange a certain tract of land belonging to appellant which lay to the south and rear of a certain tract of appellee and contiguous thereto. In exchange he asked for a 19' x 200' strip from appellee’s tract, which strip was the front or northern 19' and which bordered an existing lane. The letter stated that the offer would remain open for six months.

Appellee, through his attorney, on October 27, 1972 wrote appellant notifying him that he accepted the offer. The last paragraph of that letter stated:

“Please confirm in writing that we should prepare the act of exchange for your signature within ten (10) days of the above date so that we may prepare same.”

Appellant initially contends that a contract to exchange was never consummated because appellee’s purported acceptance was conditioned upon appellant’s written confirmation within ten days that ap-pellee should prepare for signing the act of exchange. Appellant relies on the case of Fontenot v. Huguet, 230 La. 483, 89 S.2d 45 (1956), but this reliance is misplaced. That case likewise dealt with immovable property which the defendant therein had offered to sell. The plaintiff’s written acceptance concluded with “this offer is good for 30 days.” Our Supreme Court, recognizing the principle that an offer must be accepted as made to constitute a contract, held that the above limitation was more than a hope or suggestion concerning the early title transfer. The condition effectively gave each party the right to withdraw within the time period, and thus no contract was consummated.

We distinguish Fontenot from the case at hand. The request for confirmation that appellee should prepare the act of exchange is simply that: i. e., a request, after unconditional acceptance of the contract to exchange, for appellant’s approval of administrative details of completing the exchange, or fulfilling the contract provisions. It in no way conditioned appellee’s acceptance nor changed the substance of the offer in any way. Therefore, the trial court correctly held the contract valid.

Appellant next maintains that appellee had no right under La.Civ.Code art. 701 to a gratuitous servitude of passage over the property transferred to appellant. We agree.

That article states:

Art. 701. It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.

The leading case interpreting the above article is Estopinal v. Storck’s Estate, 44 So.2d 704 (La.App.Orl. Cir. 1950). That case distinguishes the right (to an Article 701 servitude) of one acquiring an enclosed estate from a vendor or other owner, from the right vel non of an owner who, selling a part of his land, reserves for himself an enclaved portion. In the latter instance, no Article 701 servitude is due, since the owner-vendor, by his own actions, deprived his estate of access. See also Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir. 1971).

Prior to the proposed exchange, ap-pellee owned the northern tract bordering the lane and with access thereto. After the exchange, the transfer by appellee to appellant of the 19 foot strip will enclose the remainder of appellee’s tract. However, this situation is one of appellee’s making; therefore, there is no right to a gratuitous servitude of passage under Article 701.

Appellee in the original suit and in brief asked alternatively that he be provided a servitude under La.Civ.Code art. 699. This article and Article 700 provide that the owner of an enclosed estate shall have the right to a servitude of passage, but such servitude is not gratuitous, Article 699, and must be fixed generally where the distance to the public road is shortest and the injury the least, Article 700.

The case will, therefore, be remanded to the trial court on this point to fix compensation for and location of this servitude of passage. The decision of the trial court is affirmed as to the contract and reversed as to the granting of the servitude under Article 701.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Appendix to follow.

APPENDIX

1. Before proposed exchange

2. After proposed exchange


author: SARTAIN, Judge.

text:
    DIBERT, BANCROFT & ROSS CO., LTD., Plaintiff-Appellee, v. AETNA-STANDARD ENGINEERING CO., Defendant-Appellant.
    No. 10796.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Harry A. Rosenberg, New Orleans, for defendant-appellant.
    Iddo Pittman, Jr., Hammond, for plaintiff-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Defendant-appellant, Aetna Standard Engineering Company, brings this appeal from judgment rendered against it and in favor of plaintiff, Dibert, Bancroft & Ross Company, Ltd., for an amount alleged to be the balance due on an order of unmachined castings manufactured by Dibert for and at defendant’s request. Suit in this controversy was filed on January 9, 1975 and service was effected by certified mail, the return receipt for which appears in the record. Jurisdiction was purportedly based on R.S. 13:3201 et seq., infra. Defendant filed an exception to jurisdiction in personam which exception was overruled. The matter proceeded to trial on the merits and defendant was cast in judgment in the amount of $10,065.00 together with legal interest. We have reviewed the record and conclude that the trial judge erred in failing to maintain defendant’s exception to the jurisdiction of the court and for that reason we reverse.

The record shows that defendant is a foreign corporation organized under the laws of Delaware with its principal place of business in Ellwood City, Pennsylvania. Defendant is not licensed to do business in the State of Louisiana, does not regularly do business in the State of Louisiana, and has no agents for service of process in this state.

Plaintiff herein operates a foundry and on December 19,1973 received from defendant an inquiry for price quotations on several castings defendant needed for its supply of spare parts used on machinery it built. Plaintiff furnished quotations by return mail on January 4, 1974, wherein the price and delivery date were designated. On the basis of this quotation defendant submitted a purchase order on January 9, 1974. Upon receipt of defendant’s purchase order plaintiff submitted a letter to be executed by defendant wherein defendant agreed to accept the terms in plaintiff’s quotation form in lieu of the terms in defendant’s own purchase order. Defendant returned the letter duly executed on January 21,1974. Plaintiff received defendant’s patterns for the castings on March 12,1974 and work commenced sometime thereafter. The finished castings were ultimately shipped to defendant in Pennsylvania on July 1, July 3, and July 5 of 1974.

Other than the correspondence outlined above and the shipment of the several patterns into the state, defendant’s other contacts with Louisiana appear to be several telephone calls placed after March 12, at which time delivery dates were discussed. It also appears that a representative from defendant corporation may have visited with representatives of plaintiff corporation in Louisiana on one occasion to view the physical facilities.

On the basis of these facts we cannot agree with the trial judge that defendant’s connection with Louisiana was such that defendant could be subjected to in person-am jurisdiction pursuant to R.S. 13:3201(a). R.S. 13:3201(a) states:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
* * * ft

We feel that R.S. 13:3201(a) as currently construed by our state courts does not lend itself for application to the circumstances of the present case.

The case of Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971), held that a single business transaction within the state was not sufficient to hold an out of state purchaser subject to personal jurisdiction in Louisiana even though the value of the purchase was substantial and the purchaser hoped to profit from the transaction. The court noted that while there are considerable differences between an ordinary mail order consumer and a commercial purchaser, the jurisdictional statutes admitted of no distinction among foreign buyers. The court stated:

“Nevertheless, our statutes give us no authority (nor would we desire to exercise it) to fix a dollar value for purchases which would subject out of state purchasers to the jurisdiction of Louisiana courts. Courts must treat all alike in deciding whether their business transaction subjects them to the jurisdiction of a foreign court within the limits of ‘due process.’ Whether regular and systematic purchases in pursuit of business activities will meet the constitutional test of due process is not before us. What is before us is a single order from defendant for lumber — the only business transacted in the state by defendant, except for two previous orders placed with other companies.” 251 So.2d 45 at p. 47.

Subsequently, the court decided the case of Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (1973). In Drilling Engineering the court found sufficient minimum contact with the State of Louisiana to subject the non-resident corporate defendant to personal jurisdiction where the business transaction was based upon a contract for services confected in Louisiana, which services were to be performed in Indonesia. The court stated that the applicability vel non of R.S. 13:3201 was an issue of fact to be determined by the circumstances of each case. Riverland, supra, was distinguished by the court therein for the reason that it involved the purchase of goods in the state. The court found significant in Drilling Engineering the fact that the business was not solicited by plaintiff, that it was in furtherance of defendant’s own business, and that the contract was in the nature of a “continuing transaction” since it was for a period of six months and there were periodic billings and updates on job progress during this time.

While we find difficult the distinction made with respect to minimum contacts which a non-resident commercial purchaser of goods has with the state as opposed to that of a non-resident commercial purchaser of services, the distinction appears to have been only recently affirmed in Kalvar Corporation v. General Micrographics, 318 So.2d 71 (La.App. 4th Cir., 1975), writs refused, La., 322 So.2d 773. In Kalvar, plaintiff manufacturer sought to assert personal jurisdiction over the defendant non-resident corporation, but the court found insufficient contact with the state, defendant’s representatives came to Louisiana for several days at which time contract terms were discussed and plaintiff’s facilities inspected. The ultimate contract was signed in Georgia. When plaintiff attempted to file suit on the contract in Louisiana, the court felt compelled to follow Riverland as the last expression of the Supreme Court in this area. The Supreme Court found no error of law and writs were refused.

We find that defendant herein has had no more contact with the State of Louisiana than did the defendant in Kalvar, supra. While plaintiff argues the nature of this purchasing transaction was a special order, we find no special skills involved in this transaction which would not be involved in any other eastings of unmaehined work plaintiffs might undertake. The design as well as the patterns were furnished by defendant. Plaintiff merely cast the patterns pursuant to instruction from its existing stock of metals and shipped them.

Plaintiff further argues that defendant had additional contact with the state inasmuch as defendant agreed to accept Louisiana law as governing the transaction. In support of this condition plaintiff attached to its trial memorandum in opposition to defendant’s exception of jurisdiction what purported to be a sample quotation form sent to defendant. This sample form is found in the record and on the reverse side states that Louisiana law will govern the relationship between the parties. The trial judge used this to form his conclusion that personal jurisdiction existed in this suit. However, we have reviewed the quotation form actually sent to defendant and introduced into evidence. While the reverse of this form contains terms and provisions similar in part to that of the purported “sample,” conspicuous by its absence is the provision which plaintiffs rely upon to claim that Louisiana law was to be controlling herein.

We thus conclude that the principles of Riverland, supra, and subsequently, Kalvar, supra, govern the case at bar. The situation herein is one which involves a single purchase of unmachined castings. Pursuant to Riverland and Kalvar, a single transaction of this type, not continuing in nature, regardless of whether it be commercial or consumer, will not suffice to satisfy the concept of minimum contacts imposed in due process of law.

Accordingly, for the above and foregoing reasons, the judgment of the trial court is reversed and the same is hereby entered in favor of defendant dismissing plaintiff’s suit without prejudice. All costs are taxed against plaintiff-appellee.

REVERSED AND RENDERED.


text:
    Lydia A. DUPRE v. Lawrence PELOTTO, Sr.
    No. 10773.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Walter Naquin, Jr., Thibodaux, for appellant.
    Benjamin C. Vega, Jr., Donaldsonville, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment of the Twenty-third Judicial District Court, Ascension Parish, overruling his exception to venue, and awarding Plaintiff (Appellee) an increase in child support payments previously granted in a divorce action between these parties in Lafourche Parish. We reverse and dismiss plaintiff’s action on the ground of improper venue.

The uncontroverted and admitted operative facts are as follows: The parties were formerly married and lived together in La-fourche Parish, their last matrimonial domicile. In 1964, an action of divorce was instituted between Appellant and Appellee in Lafourche Parish, wherein Appellant was ordered to pay Appellee alimony pendente lite in the sum of $90.00 monthly for the support of the minors Lawrence Pelotto, Jr., and Raymond Pelotto, issue of the marriage. On June 9, 1967, judgment of divorce was rendered in the Lafourche Parish suit, decreeing dissolution of the marital relationship between these parties, which decree made no award of permanent alimony for the children. Plaintiff is presently a resident and domiciliary of Lafourche Parish.

The trial court did not favor us with written reasons for judgment.

Relying upon Wright v. Wright, 189 La. 539, 179 So. 866; Colby v. Colby, 200 La. 321, 7 So.2d 924; Hopkins v. Hopkins, La.App., 300 So.2d 661; Caldwell v. Gilbert, La.App., 253 So.2d 639; and White v. White, La.App., 272 So.2d 469, Appellant contends Ascension Parish is not a court of proper venue because venue having attached in the Lafourche Parish divorce action between these parties, that court retained exclusive jurisdiction to modify or change all alimony, child support and custody judgments rendered therein.

Conversely, Appellee argues that the judgment of divorce terminated the judgment for child support pendente lite rendered in the divorce action. In support of this position Appellee cites and relies upon Kennedy v. Kennedy, La.App., 261 So.2d 657 and Manuel v. Broderson, La.App., 298 So.2d 333. Appellee also contends, on authority of Vetter v. Vetter, La.App., 299 So.2d 899, that after judgment of divorce the party granted custody of minors cannot pursue child custody and support issues in the concluded divorce action. Next, Appel-lee suggests that Hopkins v. Hopkins, above does not support Appellant's views but that said authority stands only for the proposition that the exclusive jurisdiction retained by the court having rendered a judgment for alimony, custody, or child support, pertains only to the function of modifying previously granted judgments. In this regard Appellee maintains that her present action is not one to modify an award because the divorce judgment terminated the temporary support granted in Lafourche Parish, but rather the instant suit is to establish the right to an amount of support due.

Virtually conceding that Wright, Hopkins and Caldwell, above, stand for the proposition advanced by Appellant, Appellee seeks to distinguish those authorities by pointing out each involved an instance wherein an action was pending, as in Hopkins, above, or the court was modifying a prior child support award granted incident to divorce, neither of which circumstances exist herein.

Our review of the authorities reveal some confusion in this area as well as some seeming conflict. Nevertheless we find that Wright, Colby, Hopkins, and White, above, establish the rule that a court which renders judgment for alimony, custody or child support incident to an action for divorce, retains exclusive jurisdiction for the purpose of modifying such a decree.

However, we find the instant case does not fall within the ambit of the rule of Wright and the other cited authorities, above, because the Lafourche Parish divorce judgment terminated the order of pendente lite child support issued therein. Kennedy v. Kennedy, above; Manuel v. Broderson, above. Since the Lafourche Parish decree did not award permanent alimony for the support of the minors involved herein, there is no decree of that court to be modified or altered. That Appellant continued to voluntarily pay the amount ordered to be paid pendente lite is a matter of no moment. Following the finality of the divorce, which has long since occurred, Appellant was not under judicial compulsion to make support payments to his children notwithstanding his moral obligation in this respect. His voluntary payments do not give Appellee legal ground for modification of Appellant’s spontaneous contributions. Since the judgment of divorce, Appellant has only the right to judicial determination of the amount of child support due, which decision must be made by a court of competent jurisdiction and venue.

Under the circumstances obtaining herein, we are of the view that the general rules of venue apply to a situation of this nature.

La.Code Civ.Pro. Art. 42, which sets forth the general rules of venue, pertinently provides:

“Art. 42. General rules

The general rules of venue are that an action against:
(1) An individual who is domiciled in the state shall be brought in the parish of his domicile.”

Numerous exceptions to the general rules provided in Article 42, above, are provided in La.Code Civ.Pro. Arts. 71 through 83, as well as certain other articles of the Code of Civil Procedure, including, particularly Article 3941, which states:

“Art. 3941. An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in the parish where either party is domiciled, or in the parish of the last matrimonial domicile.”

Our jurisprudence is well established to the effect that statutes, which provide exceptions to the general rule of venue that an action against an individual must be brought in the parish of the defendant’s domicile, are in derogation of common rights and therefore must be strictly construed and applied only to cases falling clearly within their provisions. Richardson v. Moore, La.App., 304 So.2d 425; Anglade v. Hemenway Furniture Company, La.App., 151 So.2d 164.

We find Article 3941 above, inapplicable in this instance because the present action is not one for annulment of marriage, separation from bed and board or divorce. We are here concerned with a suit by a divorced wife to initially establish the amount of child support due by the husband subsequent to the dissolution of the marriage. Our research discloses no statutory provision allowing an action of this nature to be brought against an individual in any parish other than that of the defendant’s domicile. We also find, for the reasons above stated, no jurisprudence which allows an action of this nature to be brought in any parish other than the defendant’s domicile.

We conclude, therefore, that the trial court erred in finding Ascension Parish a proper venue for the bringing of this action and in overruling Appellant’s exception of venue in this instance.

It is ordered, adjudged and decreed that the judgment of the trial court overruling Appellant’s exception to the venue be and the same is hereby annulled, reversed and set aside and judgment rendered herein sustaining Appellant’s exception to the venue and dismissing plaintiff’s action for lack of proper venue, all costs of these proceedings to be paid by plaintiff Lydia A. Dupre.

Reversed and rendered.