author: MARVIN, Judge. PRICE, Judge,

text:
    Ira C. DILLON, Plaintiff-Appellant, v. Harold G. MORGAN, Defendant-Appellant.
    No. 13553.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    En Banc. Rehearing Denied Oct. 11, 1978.

      McConnell & McConnell by S. David Hol-laday, Springhill, for plaintiff-appellant.
    Fish & Montgomery by Roy M. Fish, Springhill, for defendant-appellant.
    Before PRICE, HALL, MARVIN, JONES and FLENIKEN (assigned), JJ.
   MARVIN, Judge.

The issue is whether a seller of land by warranty deed may claim against his purchaser a servitude of one-half minerals reserved in the deed by the seller, when the seller failed to declare to the purchaser an earlier created servitude of one-half minerals affecting the land.

When the defendant in this declaratory judgment action purchased the property in 1969, his vendor, Dean, reserved one-half the minerals. In 1973, defendant sold the land by warranty deed to the plaintiff, reserving to defendant one-half the minerals. The existence of the Dean servitude was not declared by defendant and was not otherwise revealed to plaintiff by visible signs as in Richmond v. Zapata Development Corp., 350 So.2d 875 (La.1977).

The lower court’s judgment declared plaintiff to be the “owner” of one-fourth minerals, reasoning that the minerals would be “owned” one-half by Dean, one-fourth by plaintiff and one-fourth by defendant because defendant had only one-half to reserve. There is no evidence that this was the intent of the parties. Both parties appeal. On reargument before a five-judge panel as required by Art. 5, Section 8(B), Louisiana Constitution, we reverse.

At the outset, we find that defendant was obligated to deliver to plaintiff and warranted to plaintiff, title to the land, subject only to the reservation of a mineral servitude of one-half minerals by defendant. C.C. Art. 2475. The sale of land includes mineral rights that are not expressly reserved or excepted (Herring v. Price, 4 So.2d 17 (La.App.2d Cir. 1941); Powell v. Roy, 130 So. 629 (La.App.2d Cir. 1930)) unless there are visible signs on the land of the existence of those rights being exercised by another (Richmond, supra). C.C. Art. 2515.

Conceptually, the obligation to deliver is different from the obligation of warranty. See and compare C.C. Arts. 2477-2499, 1907, 1924 with C.C. Arts. 2500-2519, 1905, 1926-1929. The seller is bound to explain himself clearly with respect to the extent of his obligations. C.C. Art. 2474.

Warranty is in essence a continuing guarantee to the buyer by the seller-warrantor and one of its principal objectives is maintaining the buyer in peaceable possession of the property. C.C. Art. 2476. The buyer may call upon the seller in the event the buyer is evicted because of the right or claim of a third person. C.C. Arts. 2500-2519.

If the seller fails to deliver that which he has obligated himself to deliver, the contract of sale may be enforced against the seller by the buyer by specific performance or other remedy. C.C. Arts. 1926, 2485, 2491.

The articles regarding the obligations of the seller-warrantor supply the basis for the result in cases such as Hodges v. Long-Bell Petroleum Company, 240 La. 198, 121 So.2d 831 (1960) and Gaines v. Crichton, 187 La. 345, 174 So. 666 (1937) wherein the principle of enforcing the seller’s obligations was couched in terms of estoppel, by warranty or by deed. By whatever name, the principle is sound that a seller should not be allowed to obligate himself to deliver and to warrant title and peaceable possession to a buyer of a thing and then by his own act or claim to derogate from, or to assert rights to the thing contrary to, his obligations. Thus, in Hodges, the sellers under a warranty deed, who reserved a mineral servitude in 1938 and who failed to declare to the buyer the existence of a mineral servitude created in 1931, were es-topped or not allowed to assert against the buyer their rights under the 1931 servitude.

Here, the seller shall not be allowed to derogate from his obligations in the contract of sale. When the existence and validity of the earlier Dean servitude of one-half minerals is recognized, it is impossible to uphold on the one hand, defendant’s reservation of one-half minerals, while upholding on the other hand, defendant’s obligations of delivery and of warranty of the right to explore and exploit one-half the minerals. There cannot be three halves in a whole. Because of his obligations in the contract of sale, defendant cannot assert against the buyer his claim to the servitude of one-half minerals reserved in the deed.

In Hodges, the buyer was not allowed to assert any claim contrary to the contract of sale by which he acquired the property, in effect making the “estoppel” a two-edged sword. Defendant here alternatively urges that because plaintiff knew he was “getting” only one-half minerals, plaintiff should be similarly barred from asserting ownership of all the minerals if and when the Dean servitude is extinguished.

Projecting defendant’s alternative argument in this respect would produce this result in mineral “ownership,” assuming no interruption or suspension of liberative prescription:

1969 Dean 14 Defendant, as landowner V2
1973 Dean V2 Plaintiff, as landowner V2
1979 Defendant 14 Plaintiff, as landowner 14
1983 Landowner, in perfect ownership

It is true that defendant’s dealing with the mineral rights underlying the property, in effect, produced problems similar to those produced by an “oversale” of minerals by a landowner. Defendant agreed to the acquisition by Dean of one-half minerals in 1969. Defendant attempted to acquire for himself one-half minerals in 1973, at the same time conveying to plaintiff one-half minerals. See Arts. 77, 78 and 79, Louisiana Mineral Code, and Comments following, statutorily recognizing the after-acquired title doctrine in oversale situations.

While defendant’s alternative argument appears to have equitable merit, it cannot withstand close scrutiny. Only the landowner is empowered to create the mineral servitude. Art. 24, Louisiana Mineral Code. Articles 76, 77, 78 and 79 of the Mineral Code concern a true oversale of minerals by a landowner whose obligation, like that of the defendant here, is to deliver that which he has sold and guaranteed (warranted). The plaintiff in this case did not oversell the minerals. Instead, it was the defendant, if indeed it can be said that there was an oversale as contemplated by the Mineral Code. Plaintiff here did not obligate himself in the 1973 deed to deliver to or to warrant to the seller any fractional mineral right. The “estoppel” was applied to the buyer in Hodges because the buyer had not been evicted in any respect from that which the sellers sold. Hodges was not an oversale because the sellers did not obligate themselves to deliver or to warrant any mineral rights to the buyer. Here the seller obligated himself to deliver and to warrant to the buyer one-half the mineral rights and here the eviction of the buyer of this right is caused by the seller’s claim to one-half mineral rights.

While it is true that a buyer who goes into possession is not allowed to dispute his seller’s title while he remains in possession—our understanding of the basis of the estoppel of the buyer in Hodges —certainly a buyer may enforce the obligations against his seller when it is the seller’s actions which cause eviction of the buyer. See Consolidated-Progressive Oil Corp. v. Standard Oil Co., 158 La. 982, 105 So. 36 (1925).

Defendant’s alternative argument is an attempt to have recognized his rever-sionary right to the expectancy of extinction of the outstanding Dean servitude, contrary to Art. 76, La. Mineral Code and Hicks v. Clark, 225 La. 133, 72 So.2d 322 (1954). The after-acquired title doctrine which has been incorporated into our Mineral Code was developed in Louisiana as a means of enforcing the seller’s obligations to the buyer and not vice versa. See Comment, Mineral Rights and After-Acquired Title, 18 La.L.R. 312.

Defendant also contends that plaintiff’s remedy is for breach of warranty because plaintiff’s eviction, if any, is only partial. Declaratory relief is available and is not precluded to plaintiff even though other relief is available. C.C.P. 1871, et seq.

Accordingly, judgment below is reversed at the cost of defendant-appellant and there is judgment in favor of plaintiff, Ira C. Dillon, declaring that in that certain deed under Register No. 237190, Webster Parish, Louisiana, dated January 10, 1973, plaintiff acquired, with the property described:

“Begin at the Southwest Corner of the Northeast Quarter of the Southwest Quarter (NEVi of SWVi), Section 31, Township 23 North, Range 10 West, Webster Parish, Louisiana, thence run East along the South Line of said NEVi of SWVi, 373 feet to the point of beginning; thence continue East along the South Line of said NEV4 of SW1/^, 600 feet; thence run North 305 feet; thence run West 343 feet; thence run South 63 feet; thence run West 257 feet, more or less, to a point due North of the point of beginning; thence run South 242 feet to the point of beginning, containing 3.8 acres, more or less.
ALSO: The North 780 feet of the Southeast Quarter of the Southwest Quarter (SEl/4 of SW1/*), Section 31, Township 23 North, Range 10 West, Webster Parish, Louisiana, less three (3) acres sold to Johnny Green described in Volume 414, Page 145, of the Webster Parish Conveyance Records.”

the right to explore for and produce and reduce to his possession as an element of perfect ownership of land, one-half of all the minerals of any nature whatsoever underlying the property, and that this right of plaintiff shall be superior to and shall take precedence over the attempt by defendant, Harold G. Morgan, in said deed to create a mineral servitude by reserving to himself one-half of all the oil, gas, and other minerals underlying said property.

REVERSED AND RENDERED.

PRICE, J., dissents with written reasons.

HALL, J., dissents for reasons assigned by PRICE, J.

BOLIN, J., recused.

PRICE, Judge,

dissenting.

Ira C. Dillon brought this action to be declared the owner of an undivided one-half interest in the minerals under a tract of land purchased by him from defendant, Harold G. Morgan.

The pertinent facts are as follows: On February 8, 1969, defendant purchased the subject property along with other acreage in Webster Parish from Ray T. Dean who reserved one-half of the minerals. On January 10, 1973, defendant sold plaintiff a portion of the land he acquired from Dean and reserved one-half the minerals to himself. The deed, which was prepared by plaintiff’s attorney, provides for an express warranty of “full guarantee of title” and did not acknowledge the existence of the prior reservation of one-half the minerals-by Dean in 1969.

Plaintiff contends that in view of the outstanding mineral servitude at the time of the sale, the express warranty of title estops defendant from claiming the ownership of the other one-half interest in the minerals.

Defendant contends that plaintiff had either actual or constructive knowledge of Dean’s prior reservation and has no claim under warranty for not receiving any interest in the minerals under the property sold to him. Defendant has not proven by a preponderance of the evidence that he declared the existence of the prior servitude to plaintiff at the time of the sale, nor can it be said that plaintiff had constructive knowledge because of the title examination by the attorney who prepared the act of sale as the opinion was directed to a lender and was for a restricted purpose. Therefore, having reserved only one-half of the minerals to himself in the deed, defendant warranted to plaintiff that there was no outstanding servitude affecting the other one-half.

Defendant alternatively contends that if his warranty is so construed to guarantee plaintiff one-half of the minerals, then plaintiff’s action is one of partial eviction and his remedy is limited to rescission of the contract or reduction of the purchase price. This remedy is in accord with the provisions of the Civil Code and is the relief to which plaintiff is entitled.

While it may be that defendant owes plaintiff an obligation under warranty for failing to declare the existence of the no-napparent servitude which encumbered the title to the property conveyed, this factor does not operate to nullify the grant to him of an undivided one-half of the minerals by the reservation clause of the deed. I am unaware of any Louisiana case which has allowed one party to use estoppel by deed to divest a second party of a real right established in a conveyance. Plaintiff’s relief lies under the Civil Code articles providing for the warranty of the seller in the case of an eviction. La. C.C. Arts. 2500-2514. Herring v. Price, 4 So.2d 17 (La.App.2d Cir. 1941).

An eviction from title may result in the loss of the totality or a part of the thing sold due to claims of a third person. La. C.C. Art. 2500. The eviction of this case is only partial since plaintiff is undisturbed in his title to the surface of the land. Therefore, plaintiff’s remedy is to either have the sale cancelled, if the part from which he was evicted is of such a consequence that he would not have purchased it without the part, or to receive the value of the part in a proportion that the part bears to the total sale price. La. C.C. Arts. 2511, 2514.

The majority opinion is in error in applying the equitable doctrine of estoppel by deed to the circumstances presented here. Estoppel by deed, when applied correctly, merely means the contract speaks for itself. Neither party can abrogate the terms of the contract, which in this case specifically reserved to the seller a servitude of a one-half interest in the minerals. Therefore, under a proper application of the equitable principle relied on, neither the buyer nor the seller could claim that the other did not own a one-half interest in the minerals. This would lead to an impossible result since a one-half interest cannot be given to both the buyer and the seller.

La. C.C. Art. 21 provides for the resort to equity only in the absence of specific codal provisions on the question at issue. The Civil Code prescribes specific relief for the buyer under the circumstances presented here in Articles 2500-2519.

The effect of the majority opinion is to reform the contract and to take a validly created mineral servitude from the seller and to give it to the buyer, a result which was never intended by both parties to the contract. This leaves the seller with no interest whatsoever in the minerals, yet the purchase price remains the same. Therefore, the proper solution is that provided by the Civil Code.

The decisions relied on for application of the doctrine of estoppel by deed in the majority opinion, Hodges v. Long-Bell Petroleum, 240 La. 198, 121 So.2d 831 (1960) and Gaines v. Crichton, 187 La. 345, 174 So. 666 (1937), present circumstances that are distinguishable from this case.

Hodges simply held that the vendor, Long-Bell Petroleum, by using language in a conveyance tending to establish a new mineral servitude by a reservation clause was estopped to claim any other mineral interest against the purchaser, Hodges, other than that which could be effective at that time under the reservation.

Gaines merely applied estoppel to preclude a person who bought and sold property as a “trustee” from later claiming the benefit of suspension of the running of prescription against a mineral servitude because he was in fact trustee for minors which was not disclosed in the deed in question.

Neither of these decisions can be used as authority for divesting the defendant of the mineral servitude legally reserved in the act of conveyance.

I agree that the trial court judgment should be reversed, but respectfully dissent from the majority opinion insofar as it declares plaintiff is entitled to the ownership of the mineral servitude created in favor of defendant in the conveyance between the parties on January 10,1973. Since plaintiff has not demanded any relief under the applicable codal articles, and as there is insufficient evidence in the record concerning the nature, the size, or the value of the land and mineral interests from which an accurate award can be determined, this action should be dismissed reserving to plaintiff the right to seek the appropriate remedy in a separate action under proper pleadings.

      .“Ownership of land does not include ownership of oil, gas, and other minerals . The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.” R.S. 31:6, La. Mineral Code. Nonetheless, and however incorrect, “[t]he Louisiana mineral conveyancing system has a strong ñavor of those [systems] in ownership jurisdictions.” Comment, R.S. 31:5, and cases cited therein.
      When granted by the landowner to another, this right is a mineral servitude — which in the absence of visible signs of its use is a nonap-parent servitude burdening the land that must be declared by the seller of the land to his purchaser under a warranty deed or otherwise revealed to the purchaser to avoid the effect of the warranty. R.S. 31:5, 6, 21 and cases cited in Comments following; Richmond v. Zapata Development Corp., supra; C.C. Art. 2515.

      . Defendant testified that he was reserving the one-half minerals which were not reserved by Dean. Plaintiff testified that he was acquiring one-half minerals with the land subject to defendant’s attempted reservation of one-half minerals. Plaintiffs title was not examined before purchase.

      . From a proposed reversal of the lower court on our original hearing, one judge of the three-judge panel dissented as to the proposed result reached by that panel. This rehearing followed.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Terry K. STEVENS et al., Plaintiffs-Appellees, v. The BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF SHREVEPORT et al., Defendants-Appellants.
    No. 13581.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Writ Granted Oct. 20, 1978.
    John Gallagher, Neil Dixon, Shreveport, for defendants-appellants.
    Robert G. Pugh, Shreveport, for plaintiffs-appellees.

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

This is a class action suit brought on behalf of all former Shreveport police officers who terminated their employment after the effective date of the 1968 legislation establishing the police pension fund for the City of Shreveport and who are not eligible to receive benefits under the fund. The class seeks the refund of mandatory contributions made to the fund. From a judgment in favor of the officers ordering defendants to refund the contributions, defendants appeal. We affirm.

The issues raised by defendants on appeal are: (1) Are the contributions refundable under the legislation? (2) Does the failure to refund the contributions violate the officers’ constitutional due process rights? (3) Are the claims barred by one or three year prescription? Because we are affirming the trial court’s ruling that the contributions are refundable, we find it is unnecessary to treat the second issue.

The statutes governing the pension fund for Shreveport police officers, La.R.S. 33:2351 et seq., require each officer to contribute a certain percentage of his salary to the pension fund. The legislation sets forth the eligibility requirements for disability, retirement and death benefits, but does not expressly provide for the return of contributions made by an officer who terminates his employment and is not eligible for disability or retirement benefits. Defendants contend the failure of the statute to expressly authorize refunds prohibits the return of the mandatory contributions and that such refunds, if permissible, would run counter to the purposes of the pension fund.

In Hoffpauir v. City of Crowley, 284 So.2d 114 (La.App.3d Cir. 1973), writ denied 286 So.2d 366 (La.1973) our brethren on the third circuit faced a similar problem. In Hoffpauir Crowley police officers, in the same situation as plaintiffs in this case, sought a refund of mandatory contributions to the police pension fund. Although the statutes governing the Crowley pension fund, La.R.S. 33:2221 et seq., did not expressly provide for refunds, the court held the statutory scheme did not prohibit such refunds. The court observed that the statutes regulating the Crowley pension fund were similar to the statutes applicable to Shreveport. It then compared these similar statutory enactments with the pre-1967 statutes regulating the pension fund for New Orleans police officers. Observing that the latter scheme specifically prohibited the refund of contributions to those leaving the police department prior to retirement, the court reasoned:

In view of the inclusion of the prohibition in the New Orleans plan, and the exclusion thereof in the Shreveport plan and the plan under consideration, we opine that the maxim, “expressio unius est exclusio alterius”, provides a proper vehicle for discovery of the legislative intent with regard to the question before us. Garrison v. City of Shreveport, 179 La. 605, 154 So. 622; City of Shreveport v. Price, 142 La. 936, 77 So. 883; Doyal v. Roosevelt Hotel, La.App., 234 So.2d 510. Applying that principle of statutory construction to the statutes herein involved, we find that the omission from the statutes covering the retirement plan in question of a prohibition like that provided in the statutes covering the pension plan for the City of New Orleans, is a clear indication of the legislative intent that there should be no such prohibition in the pension plans of cities having a population of between 7,500 and 250,000. There being no prohibition against the refund, the plaintiffs are entitled to receive such monies as they had contributed to the police retirement fund in the City of Crowley.
284 So.2d at 115-116.

We are unable to find any significant differences between the pension plan statutes ruled on in Hoffpauir and the statutes involved in this case. Although defendants have cited many cases from other jurisdictions which are apparently contrary to Hoffpauir, we are of the opinion that Hoff-pauir correctly states the law in Louisiana and controls the disposition of this case. Accordingly, the trial court was correct in ruling plaintiffs are entitled to a refund of their mandatory contributions.

Defendants’ contention that the claims for refunds have prescribed is raised for the first time on appeal. The defendants argue the plaintiffs’ claims are for wages which prescribe in one year under the following provision La. Civil Code article 3534:

The following actions are prescribed by one year:
That of justices of the peace and notaries, and persons performing their duties, as well as that of constables, for the fees and emoluments which are due to them in their official capacity.

Alternatively, the defendants contend the claims are barred by the three year prescriptive period contained in La.C.C. art. 3538 which governs actions for the “payment of money lent” or “on all other accounts.”

We find neither of these arguments persuasive. Although the contributions were effectuated through a deduction from the plaintiffs’ salaries, we hold the claims for these contributions cannot be construed as claims for wages within the intendment of La.C.C. art. 3534. See Schmidt v. Losch, 165 So. 336 (Ct.App.Orl.1936). Nor do we find the contributions constitute money loaned or are an account with the Board of Trustees of the pension fund.

The applicable prescription period is found in La.C.C. art. 3544, which provides:

In general, all personal actions, except those before enumerated, are prescribed by ten years.

Suit having been brought within ten years, none of the claims are barred.

The judgment of the trial court is affirmed. Defendants are to pay all costs insofar as they are assessable to them under the law.

      . This case was previously before us on the question of whether the trial court erred in sustaining an exception contesting the availability of the class action procedure. We affirmed the trial court. Stevens v. Board of Trustees of Police Pension Fund, 295 So.2d 36 (La.App.2d Cir. 1974). The Louisiana Supreme Court granted certiorari, reversed and remanded the case to the trial court to determine if the class action was proper in light of clarified guidelines set forth by the court. Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975). In this appeal the defendants are not contesting the propriety of the class action procedure.

      . Prior to 1977 each officer contributed 6% of his salary. La.R.S. 33:2355. By Act 497 § 1 of 1977, the legislature increased the amount of the contribution to 9%.


author: JONES, Judge.

text:
    OUACHITA PARISH SCHOOL BOARD, Plaintiff-Appellee, v. OUACHITA PARISH SUPERVISORS ASSOCIATION et al., Defendants-Appellants.
    No. 13583.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.

      Robert P. McLeod by David E. Yerlander, III, Monroe, for plaintiff-appellee.
    McKinley, Bruscato & Loomis by Anthony J. Bruscato, Monroe, for defendant-appellant.
    Kostelka & Swearingen by Robert W. Kostelka, Monroe, Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, Charles D. Jones, Jefferson, Bryan & Gray by William J. Jefferson, New Orleans, for defendants-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

The Ouachita Parish Supervisors Association and the supervisors employed by the Ouachita Parish School Board appeal a declaratory judgment which decreed that the supervisors were not entitled to participate in the proceeds of a sales tax levied by a Ouachita Parish School Board ordinance passed pursuant to a tax election held on May 25, 1968. The appeal was answered by the Classroom Teachers of Ouachita Parish Teacher’s Association seeking an increase in the lower court’s award of attorney fees to cover the expenses of attorney fees ■ incurred on appeal. We increase the attorney fee award and as amended affirm the declaratory judgment.

The sales tax proposition submitted to the voters of Ouachita Parish in the May election provided that the proceeds from the tax would be used as follows:

“Eighty-eight percent (88%) of the revenues received by each School Board is to be used for the payment of salaries of teachers, as defined by the State Department of Education, in the elementary and secondary schools of said City and said Parish and is to be divided equally among said teachers in each school system; and Twelve percent (12%) of the revenues received by each School Board is to be used for the payment of salaries of personnel, other than said teachers and school board central office, administration and supervisory personnel, employed by the respective school boards.”

The proposition submitted to the electorate and the ordinance imposing the tax were authorized by LSA-R.S. 33:2737.

The Ouachita Parish School Board interpreted the 1968 proposition and ordinance pursuant thereto to exclude instructional supervisors from participating in the proceeds of the sales tax. In 1975 the supervisors employed by the school board made demand upon the school board for a pro-rata share of the sales tax revenue but the school board denied the request. Following the receipt of the request the school board escrowed the portion of the sales tax fund which the supervisors contended they were entitled to receive. In 1977 the board instituted this declaratory judgment action to determine whether the supervisors were entitled to participate in the supplementary salary fund.

The issue is whether the supervisors are teachers within the contemplation of the proposition passed by the voters in May of 1968.

The evidence established that the State Department of Education has never formally defined teachers. The State Department Bulletin # 746 at page 3 does require teachers and supervisors to have a certificate issued by the department based upon their qualifications.

This requirement does not resolve the problem presented because the State Department of Education requires the other professional categories of school personnel to hold the certificate. The bulletin requires supervisors to have qualifications in addition to the teaching certificate. For these reasons the requirement that teachers and supervisors have teaching certificates does not establish that the categories of employment are identical nor that the term teachers include supervisors.

Because of the failure of the State Department to define teachers, the resolution of the meaning of teachers within the contemplation of the sales tax proposition must be determined by using recognized principles of statutory interpretation.

The proposition must be read as a whole and interpreted so that each word, clause and sentence shall be given full effect. Both paragraphs must be read together and in relation with each other. The meaning of the first section which is in dispute must be determined by interpreting it with the second section to arrive at the overall meaning of the proposition. CC Article 16, LSA — R.S. 1:3, State v. Cazes, 262 La. 202, 263 So.2d 8 (1972) and CHF Finance Company v. Jochum, 241 La. 155, 127 So.2d 534 (1961).

Teachers referred to in the 88% paragraph are distinguished from the added classification of persons described in the 12% paragraph as school board central office, administration and supervisory personnel.

“Twelve percent (12%) of the revenues received by each school board is to be used for the payment of salaries of personnel, other than said teachers and school board central office, administration and supervisory personnel, employed by the respective school boards.”

The phrase said teachers in the 12% paragraph can only refer to teachers referred to in the 88% paragraph where the term teachers was first mentioned in the proposition.

Where the word said modifies a term, that term is limited to the previous identification of that same term within the statute. See Antoine v. Consolidated-Vultee Aircraft Corporation, 217 La. 251, 46 So.2d 260 (1950), Reynaud v. Bullock, 195 La. 86, 196 So. 29 (1940). The phrase said teachers used in the 12% paragraph necessarily refers to the same teachers as those identified in the 88% paragraph. The separate identification of school board central office, administration and supervisory personnel clearly demonstrates that supervisory personnel are persons who are separate and distinct from teachers entitled to receive the 88% revenues.

The District Court gave this interpretation as one of its grounds for the decision rendered saying:

“The ‘12% paragraph’ must be read together with the ‘88% clause’ so as to give meaning to the entire resolution.
This excluded from participation in 12% of the sales tax revenues ‘said teachers’ which obviously refers to the teachers in the first paragraph, ‘and school board central office, administration and supervising personnel’.
A distinction is made between the teachers and the others named. ‘Teachers’ are being put in one category and ‘school board central office, administration and supervisory personnel in another’.”

If supervisory personnel were intended to be included within the term teachers as it was used in the 88% paragraph, there would have been no need for the specific listing of supervisory personnel as persons excluded from participating in the 12% portion of the tax because the term said teachers included first in the list of exclusionary categories of the 12% paragraph would have adequately eliminated the supervisory personnel from participating in the 12% portion of the sales tax proceeds.

The mandate that each word of the proposition be given meaning and effect requires the determination that supervisory personnel be a category of school board employees separate and apart from said teachers within the meaning of the 12% paragraph. The requirement that each paragraph be read together for the determination of the meaning of the whole determines that the supervisors are not included within the term said teachers as used in the 88% paragraph. These rules of interpretation establish that supervisors were not entitled to participate in any portion of the sales tax proceeds.

The evidence proved that supervisors spend no more than 25% of their time in the schools. They maintain their office in the school board administration building. The proposition requires that a teacher must be in the elementary and secondary schools of said parish to participate in the sales tax proceeds. The common understanding of a teacher in the elementary and secondary schools would not include a supervisor who spends most of his time in the school board office and only a small amount of his time in the classroom with the students. The law requires that terms which are clear and free of ambiguity should be given a meaning in accordance with their common understanding and that the letter of the law shall not be disregarded under the pretext of pursuing the spirit. CC Article 13, LSA-R.S. 1:4, Gill Trailer and Equipment Rentals, Inc. v. S. D’Antoni, Inc. and/or S. D'Antoni Motor Freight Lines, 282 So.2d 714 (La.1973). These guides of interpretation would lead to the conclusion that supervisors are not teachers within the 88% paragraph.

The history of the successful sales tax election of May 1968 calls for a consideration of the propositions defeated in the two elections which preceded it in February of 1968 and in June of 1967. Consideration of the two unsuccessful propositions and comparing them with the successful proposition of May 1968 result in the following conclusions:

1. The course of the three sales tax propositions voted upon has been progressively to restrict and finally to eliminate the discretion of the School Board in determining which personnel employed by the School Board are entitled to share in the sales tax revenues. The defeated proposition of June 1967 sought to vest the School Board with complete discretion as to the manner of expending the funds generated from the tax; the second unsuccessful proposition allocated 90% of the revenues to “persons whose positions require a teacher’s certificate in the public elementary and secondary schools ”, and allocated 10% to all other personnel employed by the School Board, and the successful proposition changed the ratios and provided descriptive terminology to identify persons entitled to receive the funds.

2. The possession of a teacher’s certificate is not sufficient to qualify personnel as a recipient in 88% of the funds. A teacher’s certificate was a requirement of the second unsuccessful proposition but was not included as a requirement in the third and successful proposition.

3.Special intent existed with regard to “school board central office, administration and supervisory personnel”. There was no mention of these classifications in either of the first two unsuccessful propositions; the proposition which passed separately identifies these classifications for the first time, and does so with exclusionary language providing that such personnel not' share in the revenues.

The history of the May 1968 proposition indicates there was no intent for supervisors to participate in the proceeds of the tax.

The doctrine of contemporaneous construction is a well recognized tool of statutory interpretation. It provides that when an administrative body has over a long period of time placed an interpretation upon a legislative enactment, the interpretation of said body is entitled to great weight in the determination of the meaning of the legislative enactment. Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.1974).

The Ouachita Parish School Board from 1968 until 1975 excluded supervisors from participating in the sales tax revenue. The School Board refused to give the supervisors any portion of the revenue even after it was demanded to do so in 1975 at which time it put that portion of the proceeds which the supervisors demanded into escrow and thereafter filed this declaratory judgment action.

The School Board was the motivating force in submitting to the electorate the two unsuccessful tax propositions which along with the successful propositions were prepared at its direction. For these reasons it was in the best position to know the meaning of the mandate contained in the successful proposition as to the manner in which the proceeds of the tax were to be distributed. We find the local board’s interpretation requires the conclusion that supervisors were not intended to be entitled to participate in the sales tax revenue.

All the foregoing principles of interpretation establish that supervisors were not intended to be included as teachers in the elementary and secondary schools within the contemplation of the tax proposition and for that reason are not entitled to participate in the sales tax revenue.

The statute authorizing the levy of the sales tax requires that the purpose of their use be included in the proposition submitted for voter approval and the ordinance passed pursuant thereto. LSA-R.S. 33:2737(B) and (D). The proceeds of the tax can only be expended for the stated purpose. Watkins v. Ouachita Parish School Board, 173 La. 259, 136 So. 591 (La.1931); Hodnett v. Monroe City School Board, 270 So.2d 598 (La.App.2d Cir. 1972).

The supervisors contend that because they are considered teachers for the purpose of disability retirement (LSA-R.S. 17:762), normal retirement (LSA-R.S. 17:571), tenure (LSA-R.S. 17:441), and sabbatical leave (LSA-R.S. 17:1171, as construed by McDaniel v. Caddo Parish School Board, 347 So.2d 33 (La.App.2d Cir. 1977)), they are entitled to participate in the sales tax proceeds. Though supervisors are considered teachers in these situations, they must be excluded from participation in the proceeds of the tax because supplementing their salary was not within the purpose of the proposed tax levy as set forth in the proposition approved by the voters. Hodnett v. Monroe City School Board, supra.

The Classroom Teachers Association of the Ouachita Teachers Association seeks an increase of $3,500 in the attorney fees awarded by the trial court as authorized by C.C.P. Article 595 to pay for the services rendered by their attorneys subsequent to the trial court’s judgment. We believe an award of an additional $2,500 will adequately compensate these appellants’ attorneys for the services rendered by them on appeal. For the reasons assigned, we amend and recast the third paragraph of the declaratory judgment to read as follows:

“IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that attorney’s fees and costs in the aggregate amount of $7,844.00 for legal services and costs up to and including the appeal of these proceedings are hereby awarded to the CLASSROOM TEACHERS ASSOCIATION OF OUACHITA TEACHERS ASSOCIATION, MS. FRANCESS YEL-DELL, INDIVIDUALLY AND AS PRESIDENT OF THE CLASSROOM TEACHERS ASSOCIATION, and DR. JEAN REDDY, INDIVIDUALLY, in their respective capacities as class representatives of “Classroom Teachers” and the OUACHITA PARISH SCHOOL BOARD is hereby ordered to pay the said sum from among the escrow funds held by said OUACHITA PARISH SCHOOL BOARD from the 88% portion of said sales tax revenues.”

As amended the declaratory judgment is affirmed with all cost of appeal assessed against the Ouachita Parish School Board to be paid from the sales tax revenue held by it in escrow.

      . DEFINITION OF TEACHER CERTIFICATE
      . To be eligible for professional service in the schools of Louisiana, a teacher must hold a valid teacher’s certificate issued by the Louisiana State Department of Education, the requirements for which are determined by the Louisiana State Board of Education. No person who lacks this certificate shall be legally eligible for administrative, supervisory, teaching, or other professional services in the schools of this state.” State Department Bulletin # 746.

      .to be used exclusively to supplement other revenues available to the School Boards for the payment of salaries of persons whose positions require a teacher’s certificate in the public elementary and secondary schools of the said City of Monroe and Parish of Oua-chita, with ninety percent (90%) of the proceeds thereof being dedicated to this purpose, and for the payment of salaries of other personnel employed by the school boards in addition to persons whose positions require a teacher’s certificate, with ten percent (10%) of the proceeds being dedicated to this purpose.

      .to be used for the payment of salaries of teachers employed in the public elementary and secondary schools and/or for the operation of said schools, including, but not limited to the payment of salaries of other personnel employed in said schools in addition to teachers, and/or for any lawful corporate purposes of the recipients of said tax.


author: PRICE, Judge.

text:
    Sam E. STEADMAN et al., Plaintiffs-Appellants, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 13590.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    En Banc. Rehearing Denied Oct. 11, 1978.
    Kelly, Ware & Salim by Robert L. Salim, Natchitoches, for plaintiffs-appellants.
    Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, III, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

In this case plaintiffs, Sam E. Steadman and Edith E. Steadman, seek mental anguish damages of over $1,000,000 from defendant, South Central Bell, for alleged intentional and reckless conduct perpetrated on Mrs. Steadman by defendant’s employees.

Plaintiffs alleged that after having worked for defendant for nineteen years, Mrs. Steadman became disabled on November 25, 1975, and was unable to continue working; that two and one-half months thereafter defendant arbitrarily ceased paying disability benefits to plaintiff, subjecting her to severe emotional distress; that during the last week of November and the first week of December 1976, defendant’s employees telephoned Mrs. Steadman and on one occasion visited her home in order to regain the employee identification and key cards issued to her by defendant; and that these contacts caused her to be subsequently hospitalized for two weeks at Brentwood Psychiatric Hospital for depressive neurosis and an extreme mental breakdown.

Defendant filed peremptory exceptions of no cause of action and liberative prescription contending that the facts alleged in plaintiffs’ petition did not give rise to actionable negligence, and that any harm suffered by plaintiff occurred more than one year prior to filing suit. Thereafter the parties filed a joint stipulation in which they agreed that plaintiffs were not attempting to prove negligence, but were seeking recovery only for alleged intentional acts of defendant. On trial of the peremptory exceptions the trial judge sustained defendant’s exception of no cause of action and dismissed plaintiffs’ demands. Plaintiffs appeal.

The sole issue is whether the facts of plaintiffs’ petition, if accepted as true, give rise to legal redress. The pertinent paragraphs of plaintiffs’ original and supplemental petitions read as follows:

That on or about February 10, 1976, Dr. Phillips informed the defendant that the discontinuance of disability benefits had caused severe emotional and mental distress to the petitioner, Edith E. Stead-man.
That despite the prior knowledge defendant had of petitioner’s peculiar sensitivities, in early December of 1976, the defendant sent their agent, Mr. Charles Martin, to the home of the petitioner to acquire a key card and identification card from the plaintiff.
That throughout the last week of November and first week of December, 1976, the defendant’s agent and employees, Charles Martin, Olin Higgs, and Mrs. Vivian Farrow, called and contacted the petitioner; as a result of defendant’s actions, Mrs. Steadman was forced to be hospitalized at Brentwood Psychiatric Hospital for intensive treatment from December 2, 1976 until December 16, 1976.
That petitioners allege upon information and belief that the defendant had been repeatedly warned not to contact the plaintiff under any circumstances by plaintiff’s doctors and plaintiff’s attorney, prior to the action of the defendant in December of 1976.

Although plaintiffs alleged in their original petition that defendant periodically harassed Mrs. Steadman, this allegation was struck by plaintiffs in their supplemental petition; therefore, no act of harassment is alleged.

In essence plaintiffs contend that defendant’s arbitrary discontinuance of Mrs. Steadman’s disability benefits, in addition to the visit and telephone calls to her in disregard of her doctor’s warnings, are intentional torts subjecting her to physical injury and emotional trauma.

Since the parties by stipulation have limited recovery to damages caused by intentional acts, it is unnecessary to discuss whether the petition states a cause of action for negligence.

The general rule of law concerning damages for mental distress due to intentional torts is that the defendant must either have actively desired to bring about the mental anguish or realized to a virtual certainty that it would occur. See 23 Louisiana Law Review 281 at 292; Prosser, Law of Torts (1971), 4th Ed., § 12, p. 49. Recovery for mental anguish caused by intentional torts has generally been limited to instances of outrageous conduct. Malone, Studies in Louisiana Tort Law (1970), p. 39; Nickerson v. Hodges, 146 La. 735, 84 So. 37 (1920).

Plaintiffs’ theory of liability is predicated on Nickerson v. Hodges, supra, and Section 46 of Restatement of Torts Second. Nickerson is not analogous to the facts alleged here. In Nickerson defendants intentionally played a practical joke on a middle-aged woman who had a history of mental problems, by burying a pot of dirt and rocks and leading her to believe it was filled with gold, subsequently humiliating her when it was opened at a ceremony conducted by the town officials. The facts before us, however, allege no intent to embarrass, humiliate, or cause emotional distress.

The pertinent part of Section 46 and the comments thereto state:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. .
. .. . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, “Outrageous!” (Comment d)
The conduct, although it would otherwise be extreme and outrageous, may be privileged under certain circumstances. The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress . . . (Comment g)

Although the court is not bound to adhere to the Restatement, it may be considered in determining whether intentional fault under Civil Code Art. 2315 exists. The facts as alleged in plaintiffs’ petition do not, as a matter of law, warrant a finding of an intent to cause emotional distress either under the Restatement or C.C. Art. 2315. The facts as alleged do not show that defendant acted in an atrocious, outrageous, or utterly intolerable manner. Further, even conceding such actions as outrageous, these acts would be privileged as a matter of law under these particular circumstances, as defendant did no more than to assert its legal rights of regaining the identification and key cards in a permissible way.

Without allegations of fact showing that defendant intended to embarrass, humiliate, or mentally and emotionally disturb plaintiff, and that such conduct was done in a manner which was outrageous and beyond the privileged bounds of insisting on one’s legal rights, plaintiffs’ petition does not state a cause of action for emotional trauma due to intentional acts under C.C. Art. 2315.

For the reasons assigned the judgment is affirmed at appellants’ cost.


text:
    Helen Kulikowski SCHUELER, Plaintiff-Appellee, v. Irvin Otto SCHUELER, Defendant-Appellant.
    No. 13592.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.

      A. L. Blondeau, Bossier City, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

At issue in this suit against plaintiff’s former husband to partition his military retirement benefits is whether plaintiff ex-wife has produced sufficient proof of her demand to confirm a default judgment in her favor. The trial judge ruled plaintiff proved her entitlement to one-half of all retirement benefits, commencing from the date of dissolution of the marital community. Defendant appeals. We set aside the default judgment and remand.

At the confirmation proceeding plaintiff proved the following facts by way of documentary and testimonial evidence: that her ex-husband entered active duty in the U. S. Air Force in March 1953, married plaintiff in December 1956, and retired on April 1, 1973 from Barksdale Air Force Base in Bossier Parish, Louisiana; that the couple was judicially separated in Bossier Parish on October 29, 1975 and divorced in 1977; that defendant ex-husband was receiving a gross retirement income of $1,018 per month; that since the date of separation plaintiff has been living in Bossier City and defendant in Shreveport.

The record contains neither allegations nor evidence to show defendant’s domiciliary state when he entered the U. S. Air Force (see La.R.S. 1:54)., There are no allegations nor evidence to indicate that plaintiff and defendant married in Louisiana or indeed resided as husband and wife in Louisiana or another community property state at any time during the period of defendant’s active duty, when he was earning his retirement benefits.

To confirm a default judgment, the plaintiff must prove the essential elements of the claim by competent evidence, as fully as though each allegation in the petition had been specifically denied by the defendant. Louisiana Code of Civil Procedure Art. 1702; City of Monroe v. Fussell, 297 So.2d 482 (La.App. 2d Cir., 1974). Although there is normally a presumption that a default judgment was confirmed by evidence sufficient to support a prima facie case, this presumption is not operative where, as here, the record on appeal contains a complete transcript of the confirmation proceedings. Acme Poster Advertising Co. v. State, Dept. of Highways, 352 So.2d 397 (La.App. 3d Cir., 1977).

Plaintiff’s evidence outlined above is not sufficient to show a prima facie entitlement to one-half of all retirement benefits due defendant since the date of the dissolution of the community. Specifically, plaintiff has not shown that a community regime ever existed during the twenty years of defendant’s active duty when he earned those benefits. This failure of allegations or proof renders impossible a judicial determination of what portion, if any, of defendant’s retirement pay constitutes community property. See Swope v. Mitchell, 324 So.2d 461 (La.App. 3d Cir., 1975).

Por the reasons assigned, the default judgment of December 21, 1977 is set aside and the case is remanded for further proceedings. All costs are to await the final determination of the cause.


text:
    Scottie G. NEAL, Plaintiff-Appellant, v. Brenda WHITE, Defendant-Appellee.
    No. 13598.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    En Banc. Rehearing Denied Oct. 11, 1978.
    Clyde Lain, II, Monroe, for plaintiff-appellant.
    North Louisiana Legal Assistance Corporation by Edmund G. Brown, III, Monroe, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiff, Scottie G. Neal, appeals a judgment awarding custody of a minor child to the natural mother, Brenda Faye White.

Plaintiff sought a writ of habeas corpus to obtain custody of four-year-old Shirley White, contending that although he and defendant never married, they were the natural parents of the minor child who had been cared for and kept by him since the child was approximately six weeks old. He alleges the child was recently taken from him by defendant to her parents’ home. Plaintiff further contends that defendant has no means of supporting the child; that defendant is unfit to have the child; and that it is in the best interest of the child to be in his custody.

The trial court rejected plaintiff’s demands and awarded the defendant-mother custody of the child because the court found plaintiff had failed to establish he was the natural father of the child.

The plaintiff’s appeal presents three issues: (1) whether the trial court erred in awarding custody based solely on plaintiff’s failure to prove paternity, without considering the best interests of the child; (2) whether the mother is unfit or unable to provide a home for the child; and (3) whether the trial court erred in ordering on its own motion a blood test to determine plaintiff’s possible paternity and subsequently adopting the questionable accuracy of the results.

Because of our view that custody should be awarded to plaintiff even in the absence of proof to a legal certainty that he is a natural father of the child, there is no necessity for us to resolve the correctness of the trial court’s action in ordering a blood test after the conclusion of the trial.

Although a mother has a superior right to her child over third persons, this right must yield to the superior right of the state to deprive her of care and custody of the child in the event the physical, mental, and moral welfare of the child requires it. State v. Watson, 210 La. 265, 26 So.2d 740 (1946). When the parent competes with nonparents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. Wood v. Beard, 290 So.2d 675 (La.1974). The “best interest rule” applies whether the child is legitimate or illegitimate. Creppel v. Thornton, 230 So.2d 644 (La.App. 4th Cir. 1970).

Plaintiff contends defendant informed him after the birth of the child that he was the father, and on this basis he accepted the physical custody of the child several weeks after birth. Although defendant denies in her testimony she represented to plaintiff he was the father, her actions in giving the child to him shortly after birth and allowing the child to remain in his parents’ home for approximately four years is not compatible with her testimony. Defendant has three children born out of wedlock, has an eighth grade education, has never worked, and exists on welfare. It was only when the welfare department found out she was living with a man and terminated her welfare payments that she brought the child back to the overcrowded home of her parents to regain her welfare payments. Defendant’s character and environment demonstrate that she is unfit and unable to care properly for the child, and her actions indicate that she does not care for the child, supporting the conclusion she has forfeited her parental right of custody.

Although plaintiff is a single man and there is an admission of some homosexual activity in his past, there is no testimony that this behavioral pattern has had an adverse effect on the child. He has a full-time job and lives in an adequate home with his parents. Plaintiff pays his mother to care for the child and pays for the food, clothing, and medical care for her. Plaintiff’s father is a minister, and the child has been afforded proper spiritual and moral training during the four years she has been in their home. Under these circumstances the welfare of the child will be better served if she remains with plaintiff in the home of his parents.

For the reasons assigned the judgment is reversed, and it is hereby ordered that the care, custody, and control of the minor, Shirley White, is awarded unto plaintiff, Scottie G. Neal. All costs of these proceedings including this appeal are assessed to defendant.


author: HALL, Judge.

text:
    Sara B. WILLIAMS, Individually and as natural tutrix of her minor children, Sara Suzanne Williams and Jason Lynn Williams, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY et al., Defendants-Third-Party Plaintiffs and Defendants Appellants-Appellees.
    No. 13599.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Thompson, Sparks, Cudd & Dean by Wood T. Sparks, Monroe, for plaintiff-appellant Sara B. Williams, individually and as natural tutrix for her minor children, Sara Suzanne Williams and Jason Lynn Williams.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendant-third party plaintiff-appellant Aetna Casualty and Surety Co.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendants-third-party defendants-appellees John Carr Burgess and Hartford Accident & Indemnity Co.
    Gist, Methvin & Trimble by Howard B. Gist, Jr., Alexandria, for defendant-third-party defendant-appellee General Motors Corp.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

In this wrongful death action arising out of an on-the-job accident which happened prior to the effective date of Act 147 of 1976, amending LSA — R.S. 23:1032 and 1101, the district court held the act to be retroactive, sustained a peremptory exception of no right of action and no cause of action, and dismissed the plaintiff’s and third-party-plaintiffs’ demands against an executive officer of the decedent’s employer and the executive officer’s liability insurer.

Act 147 of 1976 cannot be applied retroactively so as to bar a cause of action against an executive officer of an employer arising out of an accident which occurred prior to the effective date of the act. Bostick v. International Minerals & Chemical Corporation, 360 So.2d 898 (La.App. 2d Cir. 1978); Guillory v. McClinton, 359 So.2d 223 (La.App. 1st Cir. 1978); Wilkinson v. Viccinelli, 359 So.2d 634 (La.App. 1st Cir. 1978); Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3d Cir. 1978); Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir. 1977), writ refused 354 So.2d 210 (La.1978).

The judgment of the district court is reversed; the peremptory exception of no right of action and no cause of action is overruled; the action is remanded to the district court for further proceedings; and the costs of appeal are assessed to appellees, John Carr Burgess and Hartford Accident & Indemnity Company.

Reversed and remanded.


text:
    Michael Ray WADE, Plaintiff-Appellant, v. Gail Jo Ann WADE, Defendant-Appellee.
    No. 13605.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Joseph D. Guerriero, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by Murphy Blackwell, Jr., West Monroe, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

By this appeal the mother and father of a five-year-old girl question the correctness of a judgment awarding the temporary custody of their daughter to her maternal aunt and uncle. We reverse and grant custody to the mother.

Plaintiff sued his wife for divorce and brought a rule for custody of his daughter who was then in custody of the mother under a previously rendered judgment of separation. Both demands were based on the allegation that defendant had been living in open, notorious adultery while the minor child was in her home. Following a hearing on the rule, plaintiff and defendant stipulated that the divorce action be decided on the evidence taken during the trial of the rule. Judgment of divorce was granted in favor of plaintiff but temporary custody of the child was removed from her mother and placed with her maternal aunt and uncle.

During the hearing of the custody rule the major accusations and charges were either admitted or substantially proved, although no evidence was adduced to show that the child was a neglected child as that term is defined in La.R.S. 13:1570 A (1). At the close of the testimony the minutes reflect that the trial judge ordered the case converted into a juvenile proceeding and announced he would advise the welfare department to investigate the homes of both parties; and that the court would notify counsel of the date of his ruling.

On December 1,1977, following receipt of the investigative report of the welfare agency, the trial judge announced in the presence of the attorneys:

The child’s best interest is not with either parent, and therefore the court makes the child a ward of the court with the temporary custody being placed with Mr. and Mrs. Gilbert Snowden. [Mr. Snowden is the brother of the maternal grandmother]. Each parent is ordered to pay the sum of $15.00 per week for the support of the minor child to be paid through the Division of Family Services and visitation is to be at reasonable times and places, and if necessary the Court will set specific visitation rights.

No written reasons were assigned for judgment, but it is apparent from the above statement that the judge considered not only the evidence adduced at the hearing but also the report of the welfare agency. This report, which is stamped “filed in evidence” and signed by the clerk of court, was not offered by either party to this proceeding.

Plaintiff appealed the custody ruling and defendant answered the appeal, asking that custody be restored to her. That portion of the judgment granting the divorce is not appealed. Both contend the trial court was in error in placing custody with a third person not a party to the suit. Alternatively, defendant asks that the case be remanded for the taking of evidence of her improved living conditions, particularly her marriage.

In the petition for change of custody the sole basis given by plaintiff for the charge of unfitness of the mother is that she committed adultery on four specific occasions with the same man over a period of several months during which time it is alleged he was living in the home with the defendant and the child.

In answer to the custody rule defendant alleged she did nothing immoral or indecent that would characterize her an unfit mother. She alleged that her home is a wholesome environment for the child and that the child, in her custody, is happy and well adjusted and receives adequate care from herself and the maternal grandmother. She further charged that the father, who lives with his parents, could not provide a proper home for the child, citing the criminal record of the father and grandfather and the fact that all three members of the household work during the day and would not be available to supervise and care for the child.

The first question for consideration is the correctness of the trial judge’s action in converting the suit into a juvenile proceeding and awarding custody to third persons not party to the suit. No briefs have been filed on behalf of the aunt and uncle to whom custody was awarded, nor is the state represented on this appeal.

Statutes conferring jurisdiction on the juvenile court in matters of this nature, and the procedure to be followed, are found in La.R.S. 13:1561-13:1592. Pertinent to the instant suit are the following portions of 13:1570, 1574, 1575 and 1580:

§ 1570.
Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
A. Concerning any child whose domicile is within the parish or who is found within the parish:
(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses,, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care necessary for his well-being; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody, or support; .
§ 1574.
A. Whenever any person informs the court that a child is within the purview of this chapter, the court shall cause to be made an inquiry to determine whether the interests of the public or of the child require that further action be taken. Whereupon the court may make such informal adjustment as is practicable without a petition or may authorize a petition to be filed by any person;
* * S(! * * *
§ 1575.
A. After the petition has been filed, the court shall direct the issuance of summonses, one directed to the child, if he is twelve or more years of age and alleged to be neglected or any child who is alleged to be delinquent or in need of supervision, or otherwise needs the protection of the state and another to the parents, guardian, tutor, or other custodian, and such persons as appear to the court to be proper or necessary parties to the proceedings, requiring them to appear personally before the court at the time fixed to answer the allegations of the petition. .
******
§ 1580.
A. If the court finds that a child is within the purview of R.S. 13:1561 through 13:1592, it may adjudge the child to be a neglected child or delinquent child, as defined in R.S. 13:1569, . in its judgment, .
******
(3) Make such other disposition of the child as the court deems to be for the best interests of the child, including commitment to a public mental hospital or institution for the mentally defective. However, nothing herein shall be construed as authorizing the removal of the child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
* * * * * *

We have been cited to numerous cases dealing with child custody, the most appropriate to this decision being In the Interest of Toler, 262 La. 557, 263 So.2d 888 (1972) in which the supreme court clarified the rules relative to such a proceeding.

In Toler the district judge, sitting as a juvenile court, rendered a judgment decreeing that the six minor children of Dr. William F. Toler were neglected children within the purview of R.S. 13:1561-1580 and in need of the protection of the state. He, therefore, awarded the care and custody of the children to the Louisiana Department of Public Welfare. No formal petition was ever filed nor were the provisions of 13:1575 followed. The judgment was affirmed on appeal and the supreme court granted certiorari. After a review of the statutes (R.S. 13:1574, 1575, 1579.1), the court found:

Reading all of these sections together, it is clear to us that in such cases as this one the court, where the immediacy of the situation requires prompt action for the protection of the child, is authorized, without any formal petition, to make “an informal adjustment”, so far as is practicable. That is, the child may be taken at once into detention or protective custody. This, we think, is what the court did on the nights February 6 and 10, 1972 when it immediately removed the children from the care and custody of Dr. Toler.
However, all of the other provisions contemplate an adversary proceeding like any other lawsuit, i. e., the necessity of the filing of a formal petition before the court can hear and decide the question of whether the minor is neglected or delinquent and issue a custody order for an indefinite period in accordance with R.S. 13:1579.1. Such a petition setting forth the ages of the child or children, the facts which bring it or them within the purview of R.S. 13:1561-1592, and so on, is the foundation of the proceeding to determine the issue of neglect or delinquency. And any proceeding conducted in its absence, as was the instant one, is null and can have no legal effect.

The jurisdiction of juvenile courts to make an “informal adjustment” is predicated on necessity for immediate action to protect the child. Once the “immediate protection” phase of the situation is over the juvenile court has no jurisdiction to award custody unless there has been a petition filed and the child has been declared neglected, abused, abandoned or delinquent as those terms are defined in the various statutes. See Toler, supra.

Since there was no showing that the child was in need of protection, no petition has been filed, and the record reflects none of the elements necessary to a finding of negléct, the trial court, acting as a juvenile court, had no jurisdiction to deprive the parent of the child’s custody. Furthermore, the report of the welfare agency, which was not offered as evidence by either party, is not part of this record on appeal.

Remaining for consideration is the difficult question of whether this court should remand the case to permit the trial court to award custody to one of the natural parents. The advantage of this procedure would be to permit the introduction of additional evidence as to the alleged marriage of the mother since the trial of the rule, as well as other evidence relating to the present home conditions of both parents.

The advantages of deciding the issue of custody on this appeal would be to avoid additional delay. The longer this child remains with her aunt and uncle the more traumatic a custody change will be. Considering all factors, we find it would be in the best interest of the child to decide the custody issue now rather than remand the case.

Because of the father’s personal life and habits, as well as the absence of a suitable home for his daughter, it obviously would not be in the best interest of the child to award her custody to him. The fact that the mother lived in open adultery with her paramour in the same house with her young daughter should not be, and is not, condoned by this court. However, as between the father and mother, we find the advantages of awarding custody to the mother outweigh entrusting her care to her father. We make this decision realizing that a child custody award may always be changed if future circumstances show that it would be in the best interests of the minor.

That portion of the judgment decreeing a divorce is affirmed; otherwise it is reversed and Gail Jo Ann Wade is awarded the permanent care, control and custody of Darlene Wade. Plaintiff is cast for costs.


author: MARVIN, Judge.

text:
    Richard Wayne GENTRY, Plaintiff-Appellee, v. John M. PUGH et al., Defendants-Appellees, Travelers Ins. Company, Intervenor-Appellant.
    No. 13606.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Writ Refused Oct. 20, 1978.

      Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for Travelers Ins. Co., intervenor-appellant.
    Joiner & Roberts by Charles E. Joiner, West Monroe, for Richard Wayne Gentry, plaintiff-appellee.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for Hanover Ins. Co., defendant-appellee.
    Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for Insured Lloyds, defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

May a workmen’s compensation insurer be allowed to recover from an uninsured motorist carrier the amount it has paid under the workmen’s compensation law to the employee whose compensable injury was caused by an uninsured tort-feasor?

In accord' with what appears to be the unanimous result of holdings in other jurisdictions, we deny recovery to the workmen’s compensation insurer. See Larsen’s Workmen’s Compensation Law, § 71.23, Uninsured motorist policies and double recovery. The lower court judgment from which the workmen’s compensation insurer appeals, denied recovery. We affirm.

The employee, Gentry, while in the course and scope of his employment, suffered injury in an automobile accident with defendant Pugh who was uninsured. Gentry also sued his personal uninsured motorist carrier and the UM carrier of the employer’s vehicle. The employer’s workmen’s compensation insurer intervened for the amounts it had paid to or for the injured employee, approximately $10,000. The two UM carriers successfully moved for summary judgment denying recovery from them to the workmen’s compensation insurer.

The appellant insurer concedes that so-called double recovery does result in cases where multiple claims on insurance policies exist and that this result is not against public policy. The problem, says the insurer, is that the UM carriers and the workmen’s compensation insurer will each in turn claim judgment for their “subrogated” demand against the tort-feasor, resulting in the tort-feasor being exposed to far more than the actual damages suffered by his victim.

In Williams v. Buckelew, 246 So.2d 58 (La.App.2d Cir. 1971), this court refused to uphold a policy provision which would have allowed the UM carrier credit for the amounts paid the employee under the workmen’s compensation law. The basis for that holding- was that if the credit were allowed, the UM limit would be reduced below the minimum amount statutorily required by R.S. 22:1406(D)(1). The insurer now argues that Williams fulfilled the legislative objective of providing to the employee the statutory minimum UM coverage and that same objective should be reached here by allowing it to recover from the UM carriers] the amount it has paid the employee under the compensation law. The insurer also attempts to distinguish the UM carriers on the basis that the employee paid for his personal UM coverage but did not pay for the UM coverage which was afforded him while driving the employer’s covered vehicle, arguing that the judgment denying recovery produces an obvious inequitable result.

The insurer’s right of recovery rests solely upon L.R.S. 23:1101-1103. Section 1101 provides:

“When an injury ... for which compensation is payable . . . has occurred under circumstances creating in [a] third person ... a legal liability to pay damages . the aforesaid employee . . . may claim compensation . . . and the . award of compensation hereunder shall not affect the claim or right of action of the said employee against such third person .
“Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee . . . ”

Section 1102 requires that the person bringing the suit under 1101, whether the employee or the employer, give written notice of the suit to the other to facilitate intervention. Section 1103 generally provides that the employer’s claim for reimbursement of compensation shall take precedence over the employee’s claim “. . .if the damages are not sufficient” to satisfy the claims of both.

Traditionally, R.S. 23:1101-1103 have been construed as establishing but one cause of action in a situation such as we are considering and that is for the recovery of damages resulting from a single tort. See Johnson v. Marvin Cutrer Contractor, 348 So.2d 1256 (La.App. 2d Cir. 1977). The right of the employer to recover under Section 1101 is “. . . conditioned upon the basic right of the employee to recover damages . . . for which the tort-feasor is liable . . . ” Marquette Casualty Company v. Brown, 235 La. 245, 103 So.2d 269, 271 (1958). The Civil Code Articles 2159-2162 on subrogation, likewise do not avail the appellant-insurer in these circumstances. The UM carrier is not solidarily liable with the tort-feasor or with the workmen’s compensation insurer to the injured employee. See also Larsen’s Workmen’s Compensation Law, § 71.23, Uninsured motorist policies and double recovery, § 72, Who Are “Third Persons.”

The liability of the UM carrier to its insured, of course depends upon the liability of the uninsured motorist, but its ultimate liability is not in tort. The UM carrier’s liability, “purely contractual,” is based on its contract which is designed for the protection of its insured and not for the protection of the uninsured motorist. Fouquier v. Travelers Insurance Company, 204 So.2d 400, 403 (La.App. 1st Cir. 1967).

We hold then that the UM carrier is not a third person from whom the workmen’s compensation insurer is entitled to recover under R.S. 23:1101 — 1103 the amounts it has paid in compensation to an employee who was injured by a third-party tort-feasor.

The fact that premiums for the policy on the employer’s vehicle which contained additional UM coverage for an employee driving with permission of the employer were paid by the employer does not avail the workmen’s compensation insurer. An employee in such circumstances is an insured under the policy, a circumstance which was obviously known or expected by the UM carrier. Otherwise, the policy would not have been written to cover an employee of the insured.

It has been held where an employee sustains injury because of the concurrent negligence of a third person and of his employer, the third person tort-feasor is not allowed to claim contribution from the employer, although the employer may recover from the third person the amount it has paid the employee under the compensation law. See Vidrine v. Michigan Millers Mutual Insurance Co., 263 La. 300, 268 So.2d 233 (1972); LeJeune v. Highlands Insurance Company, 287 So.2d 531 (La.App. 3rd Cir. 1974), writ refused. As was held in those cases, the alleged inequities of the instant case can best address themselves to the legislature. 287 So.2d at page 533.

At appellant’s cost, judgment is

AFFIRMED.

      . See Vidrine v. Michigan Millers Mutual Insurance Co., 263 La. 300, 268 So.2d 233, 246 (1972), regarding the “name” of this recovery by the employer.


text:
    Marvin TARVER, Plaintiff-Appellee, v. U-HAUL COMPANY, INC., et al., Defendants-Appellants.
    No. 13578.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.

      Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, for Quennen Tomlinson & U-Haul Co., defendants-appellants.
    Neblett, Führer & Broussard by Robert B. Neblett, Jr., Alexandria, for Marvin Tar-ver, plaintiff-appellee.
    Stafford, Randow, O’Neal & Smith by Larry A. Stewart, Alexandria, for Hanover Ins. Co., defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Judgments below totaling $65,000 against defendants and third-party defendants arose out of a two-vehicle collision in which the plaintiff-driver of one vehicle was injured. Defendant U-Haul, which rented the truck to the defendant-driver, Tomlin-son, provided $5,000 liability insurance coverage to Tomlinson. Plaintiff’s uninsured motorist carrier, also a defendant and third-party plaintiff, provided $100,000 underin-sured and uninsured motorist coverage to plaintiff.

Against the uninsured motorist carrier, judgment was for $60,000, subject to certain credits. Against Tomlinson, judgment in favor of the uninsured motorist carrier on its third-party subrogated demand was for the same amount. Against Tomlinson, judgment in favor of plaintiff was for $5,000. Our figures are rounded.

No appeal was taken by plaintiff’s uninsured motorist carrier, but Tomlinson and his liability carrier have appealed, contending that the award for personal injury is excessive and that the lower court erred in failing to consider the poverty of Tomlinson in mitigation of the personal injury damages.

The 50-year-old plaintiff was permanently but partially disabled because of back trouble before the accident and had experienced five or six surgical procedures, three of which were within two years of the accident. The lower court found that plaintiff, who twice underwent surgery following the accident, first at the L-5 and later at the S-l level of his back, had his disability increased by 15 percent and that he would be deprived of his enjoyment of a moderately active life because of the accident.

The $65,000 award is unquestionably within the lower court’s discretion. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), and we find no manifest error in the court’s findings, amply detailed in its reasons for judgment.

The lower court heard evidence of Tom-linson’s inability to respond in judgment because of his poverty but declined to mitigate the award because bankruptcy under federal law afforded the fairest, most convenient and most protective course for defendant and his judgment creditors, including plaintiff’s uninsured motorist carrier.

Whether or not this was error, admittedly, is a most “troublesome” question. Barnett v. Vanney, 360 So.2d 617 (La.App. 4th Cir. 1978). There the plaintiff, a guest passenger in a third automobile, complained that the lower court in a jury trial, admitted evidence of the second driver’s inability to respond in judgment and of the second driver’s $25,000 liability policy limits, instructed the jury regarding mitigation because of poverty, but refused to admit evidence of the first driver’s $100,000 liability policy limits. The jury award was $35,000.

The court recognized that the award was “somewhat low,” but found no abuse of discretion because there was evidence upon which the jury could have concluded that plaintiff’s pre-existing back problem was only temporarily aggravated by the accident.

On the troublesome issue, the court held that the inability of a defendant to respond in judgment is a proper subject of consideration in assessing damages, citing numerous cases. Barnett, supra, 360 So.2d at page 620. The court continued:

“The basis for such a ruling is generally concluded to be a matter of fairness so that a defendant, who has limited ability to respond in judgment, would not be confronted with such a large judgment as may destroy him financially. It is difficult to understand why such a concept has arisen in Louisiana law, because the damages allowed in tort cases are compensatory damages and not punitive damages. If damages are to be compensatory only, the damages should be fixed solely upon the consideration of the plaintiff’s plight, not the defendant’s financial ability to respond. Although our courts have adhered to the view of permitting evidence of limitations on ability to pay, yet they have refused to permit a plaintiff to introduce evidence to show the wealth or the ability of a defendant to pay. [Citations omitted] .
“Thus, such a plaintiff as here concerned cannot complain of introduction of inability to pay, yet he is prevented from showing that the other defendant is responsible for any reasonable judgment. At the same time, between the co-defendants, the inequities of this situation seem to us to be an unnecessary burden imposed, and could result in lack of fairness to the wealthier defendant. Nevertheless, the rule of evidence relating to the defendants’ inability to respond in damages is too well entrenched for an appellate court to upset it. See, e. g., Davis v. Moore, supra.”

Barnett also recognized that problems in applying the rule will invariably arise when some defendants are impecunious and others are not. Compounding the problem here is the fact that the plaintiff’s uninsured carrier, whether in a separate or a third-party action, is subrogated to and may assert against the tort-feasor the rights and claims of the tort-feasor’s victim which it insured by the uninsured motorist provisions of its contract. See Hartford Accident & Indemnity Company v. Byles, 280 So.2d 624 (La.App. 3rd Cir. 1973).

The third-party demand is an incidental demand which may be asserted either in the principal action or separately, as a principal action. C.C.P. 1031, 1037. The mode of procedure generally in each case is the same. C.C.P. 1036. Defenses which would be available in a principal action are also available in the third-party action. C.C.P.. 1115.

In either mode of procedure, the demands of the subrogated plaintiff-subrogee cannot be legally superior to the demands of the subrogor and are subject to whatever mitigating circumstances may be available to the defendant. See Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); International Paper Co. v. Arkansas & Louisiana M. R. Co., 35 So.2d 769 (La.App. 2d Cir. 1948).

The uninsured motorist carrier contends that mitigation against its subrogated demand should not be allowed because if defendant’s poverty is to be considered at all, then it should also be considered with respect to the plaintiff-insured's claim against the carrier under the policy. We cannot agree. The carrier’s liability to plaintiff does not arise because of its relationship with the defendant-tort-feasor but on the basis of the plaintiff-victim-of-the-tort being its insured under the contract of insurance. The carrier’s liability to its insured is not in tort, but is contractual, even though the amount of the liability is based upon personal injury damage. Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir. 1978).

As a subrogated third-party plaintiff, the uninsured motorist carrier must prove its case against the third-party defendant tort-feasor in tort, however, and is subject to defenses and mitigating circumstances which might be raised by the defendant. The defendant’s limited ability to pay may affect the carrier’s recovery from defendant but it does not affect the carrier’s liability to its insured, the tort victim, since the carrier’s liability is based on the contract. The nature of the uninsured motorist coverage is to protect the insured against motor vehicle personal injury damage caused by persons such as defendant here who are uninsured and the uninsured motorist carrier cannot, under these circumstances, complain about alleged inequities. Gentry v. Pugh, supra.

In Cole v. Sherrill, 7 So.2d 205 (La.App. 2d Cir. 1942), this court recognized that it has never been considered good policy to bankrupt one to pay another even though the award might not fully compensate the plaintiff for the loss or damage and that fair justice between both parties must be reached.

In reaching fair justice — the reasonable amount of damages to be awarded the carrier — the lower court should have taken into consideration defendant’s poverty as a mitigating circumstance. See footnote two, supra. We find the lower court erred in relegating this defendant to the throes of bankruptcy.

The record shows that defendant is a 29-year-old married woodcutter, self-employed, with three children, who works as the weather permits earning no more than $100 weekly. He owes approximately $1,600 on his pulpwood truck and power saws and approximately $50 on a ten-year-old used car. These are his only assets. He had rented the U-Haul truck to use to peddle watermelons in a period of inclement weather. As a practical matter, a judgment of any amount may be the proverbial straw insofar as bankrupting a defendant in these circumstances. Considering all of the circumstances here presented, we deem an award of $2,250 will constitute fair justice to the litigants in the third-party action.

Judgment on the third-party demand appealed from is amended to reduce the amount awarded third-party plaintiff, Hanover Insurance Company, against third-party defendant, Quennen Tomlinson, to $2,250.- Third-party plaintiff shall pay the cost of this appeal.

AS AMENDED, AFFIRMED.

      . The lower court stated:
      “In conclusion, the Court notes it has declined to invoke the rule urged by counsel for Mr. Tomlinson to limit the award against him because of his limited ability to respond in judgment. This was done for the reason the Court is of the view he can seek the protection of the United States Bankruptcy Courts if and when any or all of this judgment is enforced against him. An outright limitation at this time by this Court might prejudice other creditors or favor them unjustly and it would deprive the Hanover Insurance Company of the opportunity to attempt to compromise the claim between it and him at a later date. Moreover, the Court notes there are other creditors involved in related litigation which must also be provided for eventually. The United States Courts are best suited to resolve the conflicting claims of multiple creditors asserted against an individual citizen.”

      . In Davis v. Moore, 353 So.2d 740 (La.App. 4th Cir. 1977), writ refused, that court a few months earlier squarely upheld as proper, this charge to a jury on the question [emphasis is ours]:
      “ ‘In arriving at a reasonable amount of damages to be awarded to the plaintiff, you should take into consideration the ability of the defendant to pay the amount of the judgment. You have been advised of the applicable limits of the automobile insurance policy involved in this litigation and you have also been told about the defendants’ assets, liabilities, income and expenses. It is up to you to decide what a fair and just verdict would be.’
      “This is a fair statement of the rule most recently reiterated by an appellate court in Domingue v. Continental Ins. Co., 348 So.2d 209 (La.App. 3rd Cir. 1977).”

      . Barnett also said that in multiple defendant cases a fairer result is reached if no evidence of policy limits or of ability to pay is admitted.