author: DENNIS, Justice. MARCUS, Justice SUMMERS, Justice

text:
    STATE of Louisiana v. James B. BECKERT.
    No. 56930.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Dissenting Opinion Feb. 20, 1976.
    John S. Bradford, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., A. J. Fazzio, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The defendant James Beckert was charged by bill of information under La. R.S. 14:64 with the crime of armed robbery. He entered pleas of not guilty and not guilty by reason of insanity. After a trial by jury he was found guilty and sentenced to serve twenty-five years at hard labor.

Defendant relies upon twelve assignments of error for reversal of his conviction and sentence. Because of our disposition of one of the assignments of error, we do nót reach the others. We find merit in deféndant’s assignment concerning the trial court’s denial of a defense request that the court read to the jury a charge explaining the consequence of a verdict of not guilty by reason of insanity:

“A finding of not guilty by reason of insanity gives the Court the power to com-mitt [sic] the defendant to the Louisiana Hospital for the criminally insane. The defendant shall not be discharged until the Court decides that the defendant is not a danger to society or himself.”

This Court recently held that when the trial judge has not included in the general charge an instruction explaining or quoting the law applicable to a verdict of not guilty by reason of insanity, then upon defendant’s request he must, in accordance with Art. 807 C.Cr.P., read defendant’s wholly applicable, wholly correct suggested charge to the jury. State v. Babin, 319 So.2d 367 (La.Sup.Ct.1975). Since the charge requested met these requirements, the trial judge’s denial constituted reversible error, unless State v. Babin, supra, is inapplicable to this case.

The Babin decision was filed on July 25, 1975 and the trial of the instant case was completed on May 14, 1975. Because the instant case was not final but on appeal pending a direct review at the time of the Babin decision, we are arguably not presented with an issue of true retroactivity. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). However, the argument is of no concern here, because the factors to be considered in determining retroactive application of a court ruling weigh heavily in favor of such an application in this case.

Previously we adopted in State v. Beer, 252 La. 756, 214 So.2d 133 (1968), the criteria set forth in Stovall v. Denno, 388 U. S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203 (1967) for resolving the question of retroactivity:

“ * * * (a) the purpose to be served by the new standards, (b) the extent of the reliance by law inforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

The purpose to be served by requiring the trial court to instruct the jury, upon defendant’s request, as to the meaning of the possible verdict of not guilty by reason of insanity was particularly well expressed in the case of Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957) cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067, and quoted with approval in State v. Babin, supra at p. 381. There the Court said:

“The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital,for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.”

The ruling in Babin was designed to prevent a possible miscarriage of justice, flowing from the imprisonment of one who should be hospitalized because a jury does not understand the effects of an insanity verdict. Such rules, which have for their purpose the enhancement of the reliability of determinations of guilt or innocence, are usually applied retroactively. Williams v. Estelle, 500 F.2d 206, 208-209 (5th Cir. 1974) (citing authorities).'

Law enforcement authorities do not rely for guidance in their work upon instructions to the jury pertaining to insanity verdicts or the absence thereof. Little effect on the administration of justice will result from an application of the Babin rule to cases which were not final at the time of the ruling, since there are probably not a great number of cases in this category preserving the same issue for review. Therefore, the number of new trials made necessary by thus applying the Babin rule should be small.

All of the pertinent factors point toward applying Babin here. Additionally, it would be patently unjust to affirm the conviction of the defendant, whose trial was held after Babin’s and involved the same issue, following the reversal of Ba-bin’s conviction. Accordingly, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings consistent with this holding.

SANDERS, C. J., dissents. See my dissent in State v. Babin, La., 319 So.2d 367 (1975).

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissented in State v. Babin, 319 So.2d 367 (La.1975). My dissent in Babin was based upon this court’s rationale in State v. Blackwell, 298 So.2d 798 (La.1974). For the same reason, I respectfully dissent in this case. Moreover, I do not consider that retroactive application of the rule of Babin is compelled. In my view, Babin should not be applied retroactively to trials conducted prior to the date that decision became final.

SUMMERS, Justice

(dissenting).

I dissent for the reasons set forth in my dissent in State v. Blackwell, 298 So.2d 798 (La.1974). Requiring the judge to instruct the jury on punishment can only further incumber the trial of criminal cases with an additional set of technicalities. Instructions to the jury on penalties, aside from the complications involved in the numerous variations applicable to each criminal penalty, are entirely irrelevant to the jury’s function in a criminal-trial. The jury decides guilt or innocence, nothing more. The judge imposes the penalty.

The error of this decision is compounded by its retroactive effect. Countless cases decided upon the authority of the law as it existed prior to State v. Babin, 319 So.2d 367 (La.1975) will be subject to reversal by this retroactive decree.

I respectfully dissent.


source: Caselaw Access Project

author: DENNIS, Justice. SUMMERS, Justice

license: Public Domain

text:
    Mrs. Frank CLARK v. I. H. RUBENSTEIN, INC.
    No. 56665.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Dissenting Opinion Feb. 20, 1976.
    Rehearing Denied Feb. 20, 1976.
    J. D. De Blieux, De Blieux & Adams, Baton Rouge, for plaintiff-applicant.
    Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

This is a suit for damages by a shopper who suffered humiliation and embarrassment as a consequence of the alleged unlawful detention and search of her parcels by employees of a department store.

The facts are not in dispute. Two or three days before the incident occurred, I. H. Rubenstein, Inc. installed an electronic anti-shoplifting system in its Baton Rouge Broadmoor store. To inform the public of the installation Rubenstein’s posted notices in its store and caused it to be publicized by newspapers and television stations. The system consisted of devices which emitted an audible alarm upon the passage of a special tag- through an invisible electronic-field at any exit of the building. The tags were attached to articles of merchandise in the store and Rubenstein’s sales personnel were instructed to remove the tags from each item sold. Thus it was intended that purchasers of merchandise would pass through the electronic field without incident, but the sounding of the alarm would alert store personnel to the possibility of a theft being committed. However, during the first three days the system was in operation the alarm was activated 5 or 10 times by an employee’s failure to remove a tag. The system was also susceptible to being set off accidentally by transistor radios and other objects, as well as the special merchandise tags.

As Mrs. Frank Clark was leaving the store on August 4, 1973, with several parcels she had bought, the alarm went off. It is not disputed that the store was crowded and a number of other shoppers heard the electronic buzzer and witnessed the events which followed. Upon hearing the alarm, one of Rubenstein’s male employees followed Mrs. Clark from the store and asked her to return. She complied with this request and also allowed him and another male employee to search her shopping parcels in view of other shoppers inside the store. Thereupon, it was discovered that a sales clerk had failed to remove a tag from an item of merchandise paid for by Mrs. Clark. She was allowed to leave with apologies from the manager, and none of the store’s personnel accused her of any wrongdoing or acted discourteously. Nevertheless, Mrs. Clark testified that the experience was embarrassing and that she was so upset by it that she took medication to calm herself when she got home.

This suit was brought by Mrs. Clark against I. H. Rubenstein, Inc. in the City Court of the City of Baton Rouge. The trial judge, in oral reasons for judgment, found that plaintiff suffered humiliation and embarrassment caused by a sales clerk’s failure to remove the tag, but he nevertheless rejected her claim for damages. The Court of Appeal affirmed the judgment of the City Court and stated that Mrs. Clark had been lawfully detained under La.Code of Criminal Procedure Article 215, which, in pertinent part, provides:

A peace officer, merchant, or specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.

We are uncertain of the rationale of the Court of Appeal decision. The language of the opinion and the authority cited therein indicate two possible conclusions. The Court of Appeal held either that the merchant, I. H. Rubenstein, Inc., had reasonable cause to believe that Mrs. Clark had committed theft of goods held for sale by it and, therefore, also had probable cause to detain and question her, or that the request by the defendant’s employee that she return to the store and submit to a search of her packages did not amount to a detention because she voluntarily complied with the request.

We cannot agree with either proposition. The acts and knowledge of both the employee who failed to remove the tag from the merchandise, as well as the one who heard the alarm and ran after Mrs. Clark must be attributed to their employer, I. H. Rubenstein, Inc. The employee who failed to remove the tag either knew or should have known that her action would lead to the triggering of the anti-shoplifter alarm and cause Mrs. Clark to appear to be a possible shoplifter. The evidence reflects that, during the two or three days before this happened, on about half of the times the alarm was sounded, it was caused by either an employee’s error or by other imperfections in the system. Because knowledge of these facts was attributable to I. H. Rubenstein, Inc., as well as knowledge of the sales clerk’s failure to remove the tag on the occasion in question here, the defendant did not have reasonable grounds to believe that the sounding of the alarm was caused by a theft of goods by Mrs. Clark.

Under the facts as found by both courts below Mrs. Clark was certainly subjected to a detention. When the alarm was given, and she was asked to return for a search of her goods in the presence of other shoppers, there were only two courses of action available to her. She could have attempted to leave the scene, thus tending to confirm the suspicions of the store’s employees and by-standers that she had stolen something, and subjecting herself to mpre severe embarrassment and possible restraint by force. Instead, she chose the more sensible course and mitigated her humiliation by submitting to a public inspection of her packages. Under the circumstances, her freedom of choice and action were certainly restricted and a restraint was effectively placed upon her liberty.

Our conclusions are in accordance with principles established by Louisiana jurisprudence arid that of other states. Detention grounded on substantial action by the customer showing an intent to steal has been upheld .as lawful. Coates v. Schwegmann Bros., 152 So.2d 865 (La.App. 4th Cir. 1963); Simmons v. J. C. Penny, 186 So.2d 358 (La.App. 1st Cir. 1966). But merchants who detained shoppers on the basis of mere suspicion, and without reasonable cause, have been subjected to liability. Wilde v. Schwegmann Bros. Giant Supermarkets, 160 So.2d 839 (La.App. 4th Cir. 1964); Bacharach v. F. W. Woolworth Co.,. 160 So.2d 854 (La.App. 4th Cir. 1964). See Hargrove, Louisiana Merchant Detention Statute, 25 La.L.Rev. 956 (1965).

Courts in other jurisdictions have held that restraint of personal liberty by fear of a personal difficulty amounts to a false imprisonment, and that detention of a shopper by a merchant is privileged only where the facts would cause a prudent and cautious man to reasonably believe that the customer is guilty of shoplifting. E.g., Coblyn v. Kennedy’s, Inc., 359 Mass. 319, 268 N.E.2d 860 (1971) ; Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 ALR 3rd 998.

We conclude that Mrs. Clark, the plaintiff, was detained and searched by employees of the defendant, I. H. Rubenstein, Inc., and that due to facts of which the defendant was or should have been aware, the defendant did not have reasonable cause to believe that she had committed theft of goods held for sale by it. Mrs. Clark is entitled to compensation for the embarrassment and humiliation caused her by the incident.

For the reasons assigned, the judgment of the Court of Appeal is reversed and this case is remanded to the Court of Appeal, First Circuit, for further consideration and award of damages.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

This case involves the standard of care a merchant or his employees must exercise to detain and question a person when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant. La.Code Crim.Pro. art. 215. In my view the defendant here has exercised that care and caution which a reasonable merchant would exercise under the circumstances and that the law expects nothing- more. In fact, this defendant took precautions which the ordinary merchant does not take.

An electronic anti-shoplifting system was installed in its store. The public was informed of the fact by posting notices in the store and publication of this fact in the news media. This was an effort on the part of the defendant to remove a great part of the element of error involved in the usual method of detecting shoplifters without the aid of the electronic system. True this electronic system may not have been perfect, and the element of human error continued to be involved by requiring the clerks to remove the sensitized tags, but it was undoubtedly an improvement over the usual method; and, significantly, it was more than the ordinary care merchants took to protect their customers.

The notion of fault in Article 2315 of the Civil Code, as the courts have understood it throughout the years, is conduct which violates the standard of reasonableness in the community, an act that a careful and prudent person would not undertake. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The concept is embodied in Article 215 of the Code of Criminal Procedure when it permits a merchant to detain a person for questioning “when he has reasonable cause to believe that the person has committed theft of goods.”

Article 2315 of the Civil Code does not require a merchant to be infallible in his effort to detect shoplifters, nor does Article 215 of the Code of Criminal Procedure impose such a standard.

In my view this defendant did all that was required to act reasonably under the circumstances, and their precautions met the standard of care imposed upon them by law.

I respectfully dissent.


author: CALOGERO, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Milo HAYES.
    No. 56814.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Concurring Opinion Feb. 20, 1976.

      Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Ralph E. Tyson, Asst. At-tys. Gen., Richard Kilbourne, Dist. Atty., Ad Hoc, for plaintiff-appellee.
   CALOGERO, Justice.

In 1963 the defendant, Milo Hayes, along with three other inmates of the Louisiana State Penitentiary were charged with the crime of aggravated crime against nature allegedly perpetrated against another inmate. After a trial by jury the defendants were all convicted of simple crime against nature. No appeal was perfected from this conviction. In June of 197S the defendant Hayes, following a ha-beas corpus hearing in the district court, was granted an out-of-time appeal. Only one bill of exception was reserved and perfected for consideration in connection with this appeal.

Defendant Hayes contends that the trial court erred in overruling his motion for a new trial on the basis of total lack of evidence presented at the trial.

In State v. Kennedy, 255 La. 295, 230 So.2d 818 (1970), this Court held that when it was alleged that there was a total lack of evidence of the offense charged this Court would review the legality of the conviction if the evidence was properly made part of the record. Counsel in the case before us has not specified which element or elements of the offense remain unproved. We therefore construe the allegation as directed toward each of the required elements of the crime. Our review of the record indicates that there was some evidence to prove each element of the crime.

This assignment of error lacks merit.

Furthermore, we have examined the record for errors discoverable by a reading of the pleadings and proceedings and find none. C.Cr.P. Art. 920.

Accordingly, the conviction and sentence of Milo Hayes is affirmed.

SUMMERS, J., concurs in the result and assigns reasons.

SUMMERS, Justice

(concurring).

It has been my understanding that a motion for a new trial based upon an allegation that there is a total lack of evidence should specify the particular in which the evidence is lacking. State v. Bueche, 243 La. 160, 142 So.2d 381 (1962). Only by insisting upon such an allegation can this Court ascertain from the record the object of the motion. I would require that the motion specify the element of the crime relied upon.

I respectfully concur.


text:
    STATE of Louisiana v. Charles SAM et al.
    No. 57562.
    Supreme Court of Louisiana.
    Feb. 19, 1976.
   In re: Charles Sam et al. applying for remedial writs.

Writ denied: Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Gary BRUNO and Lloyd De Silva.
    No. 57556.
    Supreme Court of Louisiana.
    Feb. 19, 1976.
   In re: State of Louisiana applying for writ of certiorari, mandamus ánd prohibition.

Writ denied: Insufficient showing to justify interference with orderly proceedings in trial court.


text:
    J. RAY McDERMOTT & CO., INC. v. AIRCO, INC., et al.
    No. 57505.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: Tom Wheatley Company, applying for writ of certiorari.

Writ denied. No error in Court of Appeal’s order refusing to grant writs. Nor does this Court deem it advisable to exercise its supervisory jurisdiction. Relator’s right to preserve for appeal its exceptions to the jurisdiction of the trial court is reserved.


text:
    STATE of Louisiana ex rel. Donald Ray BUFFETT v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57544.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: Donald Ray Buffett applying for writ of mandamus and habeas corpus.

Writ denied. Mandamus mooted by trial court’s action denying writ of habeas corpus on September 30, 1975.


text:
    SCHWEGMANN BROTHERS GIANT SUPERMARKETS et al. v. Edwin EDWARDS et al. KRAFTCO CORPORATION v. Dr. William H. STEWART, Sr., et al.
    No. 57528.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: Kraftco Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 810; 323 So.2d 81S.

Writ denied. On the facts it finds, there is no error of law in the judgment of the Court of Appeal.


text:
    Albert J. BALDO v. Lester J. THIBODAUX.
    No. 57551.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: Albert J. Baldo applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 324 So.2d 457.

Writ not considered. Application not timely filed in this court.


text:
    SCHWEGMANN BROS. GIANT SUPERMARKET et al. v. Edwin EDWARDS et al. KRAFTCO CORP. v. Dr. William H. STEWART, Sr., et al.
    No. 57529.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: La. Health and Human Resources Administration, Gulf Dairy Assoc., Inc., B. R. Area Milk Producers Assoc., Inc., North La. Pure Milk Producers’ Assoc., Inc., Central West & Southwest Dairy Farm Assoc., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 810; 323 So.2d 815.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana v. Sam COREY.
    No. 57554.
    Supreme Court of Louisiana.
    Feb. 20, 1976.
   In re: Sam Corey applying for remedial writs.

Writ refused. No error in ruling denying bail pending appeal.


author: CUTRER, Judge.

text:
    Gary Cleveland SIMPSON, Plaintiff (Defendant-in-rule), Appellant, v. Annie Wlsner SIMPSON, Defendant (Plaintiff-in-rule), Appellee.
    No. 5323.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Norman M. Magee, Ferriday, for plaintiff-appellant.
    Lyman S. Gore, Vidalia, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, Judges.
   CUTRER, Judge.

This is an appeal from a judgment on a rule for child custody which granted to plaintiff-in-rule, Annie Wisner Simpson, the custody of her minor son, Gary Cleveland Simpson, Jr., during the pendency of the separation suit filed by defendant-in-rule, Gary Cleveland Simpson, appellant before this court. We affirm the judgment of the lower court.

The facts giving rise to this controversy are as follows: Appellant and appellee were married on February 19, 1972 in Natchez, Mississippi, and thereafter established their matrimonial domicile in Con-cordia Parish, Louisiana. On April 13, 1973, their only child, Gary Cleveland Simpson, Jr., was born.

According to the allegations of appellant in his petition for separation, filed July 10, 1975, appellee left the matrimonial domicile without cause on May 19, 1975, taking the minor child with her. Appellant prayed for the appointment of a curator ad hoc to represent appellee, since she had left the state and set up residence in Wyoming. In addition, appellant prayed for a judgment of separation based on appellee’s unjustified abandonment of him and for custody of the minor child. On July 22, provisional custody of the child was given to the appellant pending the separation proceedings.

On July 29, appellee filed an answer and reconventional demand alleging that appellant had mistreated and beat her, and as a result forced appellee to leave the matrimonial domicile. She prayed for judgment granting a separation in her favor, alimony pendente lite and temporary custody of the child. An order was signed ruling appellant into court to show cause why appellee should not be granted temporary custody of the child during the pendency of the separation proceedings. A hearing was held on August 27, at which time testimony was received on the issues of child custody and alimony pendente lite. Judgment was rendered in favor of appellee, Mrs. Simpson, awarding her custody of the minor child subject to visitation rights in favor of the appellant every other weekend from Friday at 6:00 P.M. until Sunday at 6:00 P.M., beginning September 5, 1975. In addition, appellee was awarded child support in the amount of $15.00 per week, payments to commence September 5. Appellant has appealed from the judgment contending the evidence presented establishes that appellee is morally unfit and otherwise unsuitable to have custody of their child.

This appeal involves a situation controlled by LSA-C.C. article 146, which provides that the mother shall receive custody of the minor children of the marriage during separation proceedings unless there are facts presented which, within the discretion of the judge, deprive her of this right. Here the trial judge found insufficient proof that appellee was morally unfit or otherwise unsuitable to have custody of the child. We find no error on the part of the trial judge in connection with this determination.

There was testimony by some of appellant’s witnesses that appellee had made sexual advances towards them. There was testimony that appellee had struck her child with a piece of rubber tubing. There were allegations that the appellee was not properly feeding and caring for the child.

Although the trial judge gave no written reasons for his judgment, it is evident that the testimony given to impugn the moral integrity of appellee was not believed. The allegations that the child was not properly fed and cared for while with appellee were not supported by the record. As for the testimony that appellee had struck her child with a piece of rubber tubing, the tubing was introduced into evidence, and visual examination of the tubing reveals it to be scarcely larger than a soda straw. Appellee cannot be found unfit simply because she struck the child. Nolte v. Nolte, 258 So.2d 118 (La.App. 2nd Cir. 1972). We conclude that the trial judge did not abuse the discretion granted him under LSA-C.C. article 146.

For the reasons assigned, the judgment of the lower court is affirmed at appellant’s costs.

Affirmed.


author: MILLER, Judge.

text:
    Carol Lynn BERTRAND, Plaintiff-Appellee, v. Jack WARREN, Jr., Defendant-Appellant.
    No. 5314.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for defendant-appellant.
    Ware & Bertrand by George Bradford Ware, Rayne, for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Carol Lynn Bertrand brought this suit individually and as provisional tu-trix of her minor son, Jack Warren, III, seeking to prove defendant Jack Warren, Jr. 1) was the father of her child and 2) owed child support. Warren appeals the trial court judgment declaring him to be the father of her child and awarding $65 per month as child support. We affirm. Both parties agree that LSA-C.C. art. 210 is the relevant law for this case :• — •

The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.

The facts are not disputed. Warren began seeing Miss Bertrand sometime in October 1972. They became intimate and had relations some eight to ten times according to Warren and some eighty to a hundred times according to Miss Bertrand. Their relationship continued until the pregnancy was discovered in June 1973. The child was born October 7, 1973.

Warren admitted the child could be his, but was doubtful because he had a low sperm count when examined many years before. This was discovered when he and his wife of many years ago did not have children.

Warren, Miss Bertrand and the child submitted to blood tests which did not rule out the possibility of Warren’s paternity.

Miss Bertrand admitted she had relations with another man ten years before she met Warren, and admitted having sexual relations with Warren on their first date. There is no other evidence indicating she had relations with another man, and no attempt was made to prove she had relations with anyone other than Warren during the interval when it was possible for her child to have been conceived.

Warren has failed to establish manifest error in the trial court’s conclusion that Warren “failed to show that the mother was known as a woman of dissolute manners, or that she had an unlawful connection with one or more men (other than the defendant) within the contemplation of the jurisprudence.”

Defendant must establish the mother is “loose from restraint; especially loose in morals and conduct; debauched” to show her to be dissolute. Rousseau v. Bartell, 224 La. 601, 70 So.2d 394 (1954). The requirement was further delineated as “traits of character” in Ferguson v. Cascio, 158 So.2d 471 (La.App. 2 Cir. 1963). Warren contends the burden was carried when the mother admitted to relations on his first date together with her admission of relations with another man ten years before. These two facts are not in themselves sufficient evidence of a habit or pattern of conduct to establish manifest error in the trial court decision.

Warren’s second contention is that LSA-C.C. art. 210 expressly rules out his paternity — for she admitted a prior connection with another man some ten years before his relationship commenced. This provision was considered in McConkey v. Pinto, 305 So.2d 469 (La.1974). The court held a single act of intercourse more than a year after birth of the illegitimate child did not fall within the purview of this article because it was not relevant to “the premise that the mother was dissolute at the time of conception.” McConkey, 305 So.2d 469 at 471. Such evidence would not further .the purpose of the provision — to prevent the mother from choosing as father any one of several men with whom she had been intimate at the time of conception. While the circumstances of this mother’s intercourse with another man are not as favorable to this mother as in Mc-Conkey, the extreme remoteness in time is just as relevant. The admitted incident is not of sufficient relevance to the issue of this child’s paternity so as to prohibit the mother’s proof of paternity under art. 210.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


text:
    Alcide J. FAULK, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5300.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Kenneth O. Privat, Crowley, for plaintiff-appellant.
    Davidson, Meaux, Oneband & Donohoe, by John G. Torian, II, Lafayette, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, Alcide J. Faulk, sued Marvin L. Smith, Bay City Motors, Inc. and Liberty Mutual Insurance Co. for damages sustained by him in connection with an automobile accident which took place in Ka-plan, Louisiana, on February 23, 1973. After a trial on the merits the trial judge rendered judgment rejecting the plaintiff’s demands on a finding that he had failed to sustain the burden of establishing by a preponderance of the evidence that the negligence of Mr. Smith was the sole and proximate cause of the accident. Plaintiff perfected a devolutive appeal. We affirm.

Plaintiff alleged that he was driving his 1965 Ford sedan in a southerly direction on North Cushing Avenue near its intersection with East Fifth Street when the accident occurred. Smith was driving a 1973 Ford sedan, owned by Bay City Motors and insured by Liberty Mutual, in a southerly direction on North Cushing overtaking plaintiff’s vehicle. Plaintiff alleged that Smith suddenly and without warning drove the vehicle into the rear of plaintiff’s vehicle causing damage to it and personal injuries to plaintiff. The alleged personal injuries to the plaintiff consisted of severe contusions and abrasions of the neck, cervical spine, back and legs, and bruises and contusions of the body generally. Plaintiff was hospitalized for a period of two weeks. Total damages amounted to $78,850.00, according to plaintiff’s allegations. Suit was brought in forma pauperis.

The testimony of the plaintiff is that he was parked diagonally at .the Vermilion Bank & Trust Company which is located on the west side of North Cushing Avenue. After completing his business plaintiff entered his automobile, backed out into the traveled portion of the street and proceeded in a southerly direction when his vehicle was struck from the rear by defendant’s vehicle. Plaintiff was the only occupant of his vehicle.

The deposition of Smith, who died before trial, indicated that he was approaching the point of impact traveling about twenty to twenty-five miles per hour. There was a drizzle at the time of the accident and the street was wet. Smith had entered North Cushing Avenue from a parking lot not far from the location of the accident. He first saw plaintiff’s vehicle backing out from its parked position whereupon Smith applied his brakes, skidded fifteen or twenty feet and collided with the rear of plaintiff’s vehicle. His testimony indicated that at the time of the collision plaintiff’s vehicle was still backing from the parked position and not moving forward toward the intersection of North Cushing and Fifth Street.

Ray Gaspard, an officer with the Kaplan Police Department, investigated the accident. His testimony indicated that the rear center of plaintiff’s vehicle was damaged and that the right front end of defendant’s vehicle was damaged. This evidence corroborated somewhat the testimony of Smith, in that it indicates that the front end of defendant’s vehicle apparently hit the rear center of plaintiff’s vehicle at an angle rather than hitting it squarely as would have been more likely if plaintiff had already completed his backing maneuver and started moving with the flow of traffic south on North Cushing.

The trial judge noted in his written reasons for judgment that the only eyewitnesses to the accident were the two drivers, and that their versions of what took place were in irreconcilable conflict. He stated that he was unable to determine which testimony more accurately reflected the true facts. Therefore, he concluded that the plaintiff had failed to carry the burden of proving fault on the part of the defendant.

The jurisprudence of this state is to the effect that where the significant testimony tendered by the parties is conflicting and irreconcilable and the court has no reason to suspect the credibility of the witnesses, the court must find that the proponent has failed to bear the burden of proof sufficient to constitute a preponderance of evidence, in the absence of attendant significant physical evidence. Johnson v. Johnson, 296 So.2d 470 (La.App. 2nd Cir. 1974); Williams v. Bulk Transport, Inc., 266 So.2d 472 (La.App. 4th Cir. 1972); Diaz v. Breaux, 252 So.2d 697 (La.App. 1st Cir. 1971). Apparently the trial judge below found such an irreconcilable conflict in the testimony presented and a lack of sufficient physical evidence to assist him in resolving the conflict. We find no error on his part in this connection.

For the reasons assigned, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

Affirmed.

      . The suit against Bay City Motors, Inc. was subsequently dismissed without prejudice.


author: WATSON, Judge.

text:
    Deborah Sue Norris RANSONET, Plaintiff-Appellant, v. Edwin Irvin RANSONET, Defendant-Appellee.
    No. 5299.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Armentor & Wattigny by: Gerald B. Wattigny, New Iberia, for plaintiff-appellant.
    Provost, Ernest & Schwing by James W. Schwing, New Iberia, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Alimony pendente lite for the plaintiff wife, Deborah Sue Norris Ransonet, and child support for one minor child was fixed at $450 per month and subsequently decreased to $350 per month after a rule hearing initiated by the defendant husband, Edwin Irvin Ransonet. The wife has appealed from the reduction, contending that there was no change in circumstances between the initial judgment, August 8, 1975, and the filing of the rule to decrease the payments three weeks later on August 27, 1975, citing Bernhardt v. Bernhardt, 283 So.2d 226 (La., 1973). The husband contends that the reduction was based on a factual finding of a decrease in his income.

The issue is whether there is manifest error in the trial court’s reduction of the amount of child support and alimony.

The defendant husband testified that he was working for the same company and making the same wage at the time of the hearing on reduction, September 5, 1975, and at the time of the initial judgment, August 8, 1975. However, he said his total income as a crane operator had decreased because he was no longer making overtime. The initial judgment was consented to by the husband and his then attorney, and the husband understood that he was to pay $450 per month. In the brief interim between the first judgment and the rule proceeding, he failed to do so and was jailed for contempt of court. Check stubs were introduced in evidence showing his income for three weeks in August, a gross of $783.75 and a net of $630.02. The trial court said the husband’s income had been reduced from $1,250 per month to $922.56 a month. The $1,250 was the judge’s “recollection” (TR. 53) of the basis for the prior judgment. The attorneys refused to stipulate to that amount.

There is manifest error in the trial court’s conclusion that the husband showed a change in his circumstances during the period between August 8, 1975, and August 27, 1975. The husband was represented by counsel at the time the initial amount was set. He testified that he understood the terms of the agreement with his wife forming the basis for that judgment. There is no evidence in the record of the previous judgment being based on an income of $1,250 per month. Even if the husband’s income has been substantially reduced by lack of overtime, three weeks is not sufficient to show a change in his circumstances. The trial court found an average income of $922.56 a month on the basis of three weeks work, but a proper assessment of the husband’s earnings would require a -more complete record over a longer period of time.

The wife here is unemployed, although she stated she was looking for work. The necessities of life for her and the child are itemized and total $451.84 a month. While the amount of alimony pendente lite and child support appears high in relation to the means of the husband, the husband consented to pay the amount fixed and it is not subject to reduction unless a change of circumstances is shown. The record reveals that the husband paid nothing at all until put in jail and that he came back into court three weeks after the initial order with a new attorney.

While we are reluctant to reverse a trial court in such a matter, the initial judgment should not have been changed on the evidence presented.

For the foregoing reasons, the judgment of the trial court herein is reversed, and

It is ordered, adjudged and decreed that defendant, Edwin Irvin Ransonet, be or-

dered to pay the sum of $450 per month alimony and child support to plaintiff, Deborah Sue Norris Ransonet, payments to be made in the amount of $112.50 on Monday of each week, as originally fixed.

All costs are assessed against defendant-appellee, Edwin Irvin Ransonet.

Reversed and rendered.


author: DOMENGEAUX, Judge.

text:
    RAPIDES SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellee, v. LAKEVIEW DEVELOPMENT CORPORATION et al., Defendants-Appellants.
    No. 5311.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    W. C. Falkenheiner, Falkenheiner, Calhoun & Murray, Vidalia, John M. Sturgeon, Jr., Ferriday, for defendants-appellants.
    Anderson, Leithead, Scott, Boudreau & Savoy by Everett R. Scott, Jr., Lake Charles, McSween, Brook & Bolton, by Jack Pierce, Brook, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
   DOMENGEAUX, Judge.

Plaintiff is the holder of two promissory notes, each secured by conventional mortgage on immovable property situated in Concordia Parish, Louisiana, and belonging to defendant corporation. One is in the amount of $250,000.00 and the other in the amount of $70,000.00 (First and Second mortgages respectively). Defendant corporation defaulted on both notes and plaintiff filed separate suits against defendant corporation and three endorsers of. the notes to foreclose, via ordinaria, (CCP 3721 and 3722). The two suits were consolidated for trial and remain so on appeal. Both appeals are considered herein, although a separate judgment in this day being rendered in the companion suit concerning the $70,000.00 note and mortgage, Rapides Savings & Loan Association v. Lakeview Development Corporation, et al, No. 5312, 326 So.2d 514.

The trial court dismissed both suits without prejudice, and the defendants have appealed, contending that the suits should have been dismissed with prejudice. Plaintiff has filed motions to dismiss defendants’ appeals.

The pertinent facts are as follows: The plaintiff-appellee, Rapides Savings & Loan Association, filed two separate suits seeking judgment on a $250,000.00 promissory note (No. 5311) and on a $70,000.00 promissory note (No. 5312) against Lakeview Development Corporation, as corporate maker, and against Fred S. Schiele, C. J. Schiele, and Joe C. Schiele, as individual endorsers. In its first suit (No. 5311) plaintiff sought to foreclose via ordinary process on a first mortgage on certain lots, known collectively as Lakeview Development; in its second suit (No. 5312) plaintiff sought to foreclose on its second mortgage covering the same property.

The parties and issues in both suits are the same except, that No. 5312 (suit on the $70,000.00 note and second mortgage) has the additional issue concerning the authority and manner in which the alleged agent of the defendant Joe S. Schiele, signed the endorsement.

Plaintiff’s pleadings in both suits are identical, except that in No. 5311 (suit on the $250,000.00 note and fi'rst mortgage) plaintiff did not attach a certified copy of the mortgage to which its $250,000.00 note was paraphed, while in No. 5312 (suit on the $70,000.00 note and second mortgage) plaintiff did have a certified copy of the mortgage attached to its petition. The reason for this was explained by plaintiff as follows: When plaintiff’s original attorney filed his petition in No. 5311, he attached an Order Form requesting the Clerk of Court of Concordia Parish to issue and attach a certified copy of the act of mortgage with which the plaintiff’s first mortgage note was paraphed, but the Order Form inadvertently provided the wrong recordation page number for the copy, and in lieu of the act of mortgage sought to be attached, an act subordinating a prior vendor’s lien mortgage in favor of the three individual defendant endorsers to the plaintiff’s first mortgage was provided and attached.

All defendants answered both suits by way of general denials. The two suits were consolidated for trial, which began on September 20, 1974.

The presentation of the plaintiff’s case consisted essentially of offering the record of each case to date.

At the conclusion of the plaintiff’s presentation, the defendants raised several objections, which in view of our ultimate holding, need not be enumerated, save the objection that the plaintiff’s suits should be dismissed with prejudice because plaintiff failed to prove its case by not introducing into the record or including as a part of its petition a certified copy of the mortgage which secured its $250,000.00 note in No. 5311.

Plaintiff attempted to offer into the record a certified copy of the omitted mortgage after the defendants had raised the issue, but counsel for the defendants objected on the grounds that the plaintiff had rested its case, and the objection was sustained.

After arguments were had on the defendants’ objections, but before the defendants presented their case, the trial court took the matter under advisement, later rendering judgment dismissing both of plaintiff’s suits without prejudice, and at its costs.

From this judgment the defendants have perfected a devolutive appeal. After the defendants’ appeals were lodged with this court, the plaintiff filed Motions to Dismiss the defendants’ appeals, which Motions we referred to the merits.

ON THE MOTION TO DISMISS

The plaintiff moves to have the defendants’ appeals dismissed on the basis that a judgment dismissing a suit without prejudice is not a final judgment, citing LSA-C.C.P. Art. 1673, and thus not appealable, citing LSA-C.C.P. Art. 2083.

We disagree. The jurisprudence is to the effect that a judgment of dismissal without prejudice is a final judgment from which an appeal will lie. People of the Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Lee v. Carruth, 217 So.2d 718 (La.App. 3d Cir. 1969); City of New Orleans v. New Orleans Canal, Inc., 173 So.2d 43 (La.App. 4th Cir. 1965).

Accordingly, plaintiff’s motions to dis1 miss are denied.

ON THE MERITS

The only issue before us is the question of whether or not the trial court abused its discretion in dismissing the plaintiff’s suits without prejudice. We think not.

It is well settled in our jurisprudence that if a plaintiff fails to make out his case for lack of sufficient evidence which it appears he will be able to supply later, his rights should be preserved for another occasion by granting a judgment of non-suit. Logan v. Schuler, 220 La. 580, 57 So.2d 193 (1952). See also: South Louisiana Land Company v. Waterhouse, 128 La. 458, 54 So. 941 (1911); Aswell v. United States Fidelity & Guaranty Co., 244 So.2d 243 (La.App. 3rd Cir. 1971); Young v. Thompson, 189 So. 487 (La.App. 1st Cir. 1939); Official Revision Comments (b) LSA-C.C.P. Art. 1671.

In his reasons for judgment the trial court stated:

“. . . The plaintiff through inadvertence has failed to introduce into the record or to include as a part of its petition the mortgage which secures the note that it seeks to enforce. The terms of the note are such that it can not be properly interpreted without reference to the mortgage.
Based upon these facts it would appear that the plaintiff has failed to make its case on the evidence that has been produced; therefore these suits shall be dismissed at plaintiff’s costs.
Now, per dicta, and to possibly clarify this court’s position, I do not feel that the dismissal of these actions can be with prejudice. There has been no definitive ruling upon the subject matter that the plaintiff intended to litigate i. e. the foreclosure of a mortgage by ordinary process and suit upon a purported note signed by the corporation and endorsed by the other defendants. In other words, I do not feel that the ruling here would form a valid basis for a plea of res judicata to another suit filed to enforce the mortgage or collect the note that was here sued upon. The effect of this ruling should be and is intended to be the same as the sustaining of an exception, that is the plaintiff must be required to begin his action anew.”

It is clear from a reading of the above excerpt that the trial court felt ' that the plaintiff had failed to make its case through inadvertence, i. e., failure to attach the correct certified copy of the mortgage. We feel that under these circumstances there is no manifest error or abuse of discretion on the part of the District Judge in dismissing plaintiff’s suits without prejudice.

For the reasons assigned the judgment of the trial court is affirmed.

Costs of this appeal are assessed to the defendants-appellants.

Affirmed.

      . That issue was not reached by the District Court in view of its action in dismissing the suits without prejudice. As is shown hereafter we affirm the decision of the trial court and any defenses which defendant Joe S. Schiele may have can be presented for adjudication iu the event plaintiff files a new suit or suits.

      . Plaintiff is now represented by a different attorney on appeal.


text:
    RAPIDES SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellee, v. LAKEVIEW DEVELOPMENT CORPORATION et al., Defendants-Appellants.
    No. 5312.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    W. C. Falkenheiner, Falkenheiner, Calhoun & Murray, Vidalia, John M. Sturgeon, Jr., Ferriday, for defendants-appellants.
    Anderson, Leithead, Scott, Boudreau & Savoy by Everett R. Scott, Jr., Lake Charles, McSween, Brook & Bolton by Jack Pierce, Brook, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
   DOMENGEAUX, Judge.

This is a companion suit to No. 5311, 326 So.2d 511, and concerns itself with the $70,000.00 mortgage note referred to therein. For the reasons stated in the separate judgment handed down this date in Rapides Savings & Loan Association v. Lakeview Development Corporation, et al, No. 5311, 326 So.2d 511, the herein judgment of the District Court dismissing plaintiff’s suit without prejudice is hereby affirmed.

The costs of this appeal are assessed to the defendants-appellants.

Affirmed.


text:
    SOUTHEASTERN, INC., d/b/a Southeastern Materials Company, Plaintiff-Appellee, v. HUB CITY READY-MIX, INC. and J. P. Van Way, Defendants-Appellants.
    No. 5303.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.

      Logan & deLaunay, by Gerald deLaunay, Lafayette, for defendants-appellants.
    Davidson, Meaux, Onebane & Donohoe, by L. Lane Roy, Lafayette, for plaintiff-ap-pellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

This is an appeal from a judgment denying a writ of preliminary injunction to halt the sale of certain property seized under a writ of fieri facias issued to satisfy an earlier judgment.

Southeastern, Inc., d/b/a Southeastern Materials Company, plaintiff, obtained a default judgment on November 21, 1969, based on a promissory note for $9,180.00 against defendants, Hub City Ready-Mix, Inc. and J. P. Van Way, individually. In the present proceeding, Van Way filed a petition to enjoin execution of the judgment by Southeastern and following a judgment denying the injunction, he has appealed.

Van Way filed a petition to enjoin the sale of certain immovable property owned by him and located in the Parish of Lafayette on the grounds that: Southeastern had obtained from Hub City Ready-Mix a Hendrickson 1962 truck-tractor; and the transfer of the truck to Southeastern without appraisement fully extinguished Southeastern’s judicial mortgage under the provisions of the Louisiana Deficiency Judgment Act (LSA-R.S. 13:4106-4107). In the alternative, the petition alleged that Van Way was entitled to credit on the judgment for the fair rental value of the truck and another credit of $1,682.50 paid by Al-a-dex Corporation to Southeastern on behalf of Hub City and Van Way. The dates of the truck transfer and the Al-a-dex payment were not established with certainty but apparently took place when Hub City was in dire financial straits in 1969. The injunction was sought under LSA-C. C.P. art. 2298(2).

Southeastern answered the petition for injunction with a denial of the various allegations.

A hearing was held at which various parties testified concerning the events surrounding the judgment of 1969, the transfer of the truck and the payment of an amount by Al-a-dex Corporation to Southeastern. None of the parties had a very clear or precise recollection of the events.

The trial court concluded, after hearing the witnesses, that the transactions related to payment of an account existing prior to the signing of the note.

The issue with which we are presented on appeal is whether there is manifest error in the conclusion of the trial court that the transaction concerning the truck and the payment by Al-a-dex were on another account and not credits against the promissory note.

The testimony of the various witnesses is rather vague and imprecise. The trial court had the .opportunity to hear and see the witnesses and was apparently not impressed with the evidence presented by Van Way in support of his contention that the truck transfer and the Al-a-dex payment were intended in satisfaction of the judgment of 1969. We find no manifest error in this factual determination by the trial court; our independent conclusion is that the evidence presented on behalf of Van Way is not convincing.

The burden of proof is on the party seeking to enjoin enforcement of a judgment. Mutual Nat. Bank v. Moore, 104 La. 150, 29 So. 103 (1900). If he fails to carry the burden, his petition must be dismissed.

Therefore, the judgment of the trial court is affirmed at the cost of appellant, J. P. Van Way.

Affirmed.


author: PAVY, Judge.

text:
    PIONEER PRODUCTION CORPORATION et al., Plaintiffs-Appellees, v. Elizabeth Barnhill SEGRAVES et al., Defendants-Appellee-Appellants.
    No. 5298.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Granted April 23, 1976.
    F. Jefferson Millican, Jennings, for defendants-appellants.
    Jory & Donald by Donald R. Jory, Jennings, for plaintiffs-appellees.
    Liskow & Lewis by Kenneth E. Gordon, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This concursus proceeding concerns the right to landowner’s royalty attributable to land within a portion of Highway 90 in the City of Jennings. Pioneer Production Corporation, owner of leases from the City of Jennings and the heirs of John Segraves, deposited the royalty attributable to said property within the court registry and im-pleaded those opposing claimants to assert their rights.

In 1918, John G. Segraves purchased a 30 acre tract of land immediately north of the Southern Pacific Railroad. This tract of land was traversed at its southern extremity by a road originally known as the Old Spanish Trail. In 1930, in order to improve and widen said highway (then known as the Welsh-Mermentau State Highway Route 2), John Segraves granted to the State of Louisiana a right of way over a strip or parcel of land 80 feet wide lying north of the railroad right of way and including the then present highway right of way. The language of this deed clearly indicates that it transferred a servitude interest only and that the fee was not included in that conveyance. In 1946, John Segraves proceeded to subdivide a portion of the property lying north of the highway and filed a plat of the subdivision and subsequent revisions and additions of said plat. The original plat and some of the revisions show the highway, designate it as “O.S.T. Rt. 90”, and give its dimensions. The plat contains a statement signed by Segraves that he formally dedicated “. . . to public use the streets as shown on this map.”

The learned trial judge in a well-considered. opinion held that the statutory dedication did not affect the highway, that the Segraves heirs still owned the fee and were entitled to the sums on deposit. Judgment was rendered accordingly. The City of Jennings has appealed, contending that, under R.S. 33:5051 and the jurisprudence holding that a statutory dedication results in a fee conveyance of the streets, it became vested with the fee title to Highway 90 shown on the subdivision plat. The Segraves heirs contend that said statute is not applicable because said highway was not part of the subdivision and said statute does not apply to the previously existing highway.

R.S. 33:5051 reads as follows:

“Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to he surveyed or sitbdivided by a licensed surveyer or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record 'book of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:
(1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
(2) The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
(3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
(4) The name of each street and alley and its length and width in feet and inches.'
(5) The name or number of each square or plat dedicated to public use.
(6) A certificate of the parish surveyor or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
(7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.” (Emphasis in this opinion.)

A close and thoughtful reading of this act, with particular attention to the underscored language, leads to the conclusion that the act generally refers to property which is not then subject to any public servitude of passage or road right of way and that the dedication required or recognized (if no formal dedication is actually made) is of streets, alleys and public grounds shown on “. . . the map . . .”. The language “the map” must refer to that required to be filed in the clerk’s and assessor’s office which is a map of the “. . . real estate so subdivided .” or the real estate “. . . to be surveyed and platted or subdivided .” as mentioned in the first portion of that statute. Naturally enough, it could not be contended that one would subdivide an already existing street. To hold otherwise would require the completely unnecessary.

It is well settled in the jurisprudence that the purpose of this statute is to protect the purchasers of lots in the subdivisions by guaranteeing that they will have access to such streets. Such a purpose need not be furthered as to the land in question because it was already subject to a servitude of passage in favor of the public.

The fact that the highway is shown on the map does not make it part of the subdivided property or otherwise subject to the statutory dedication. This is for location and boundary purposes. The instances are extremely rare when a subdivision plat is made which eliminates a bordering road adjoining owners on other boundaries. To show such landmarks is simply good surveying practice.

Counsel for the City of Jennings cites the case of Arkansas-Louisiana Gas Company v. Parker Oil Company et al, 190 La. 957, 183 So. 229 (S.Ct.1938) and the jurisprudence following it as establishing a rule of property from which there should be no deviation. We recognize those authorities and the title-quieting values in them. But that jurisprudence does not cover the precise issue here. It settled firmly that only substantial compliance with the statute was necessary to effect the dedication and that the dedication vested a fee interest to the streets in the pertinent public body absent an intention or reservation by the landowner to retain ownership in the dedicated streets. It in no way dealt with the extent of the dedication insofar as land area itself is concerned.

We hold that a privately owned fee interest subject to a public thoroughfare which existed before the creation and platting of a subdivision or even before the sporadic sales (in contemplation of ultimate subdivision) is not subject to the fee-vesting effect of the statutory dedication unless the street is clearly shown as part of the subdivision by words or surveying symbols.

This being so, the City of Jennings obtained no fee interest in Highway 90 unless by force of the dedicatory language on the subdivision plat which was signed by John Segraves. This dedication must be construed in the light of its purpose, that is, to comply with the statutory requirements for laying out a subdivision. We think John Segraves was merely expressing his attempt to achieve such compliance and did not intend to dedicate to public use Highway 90 as to which there already existed a public servitude. The rule in the Arkansas-Louisiana Gas case did not establish an inexorable rule of fee vesting in connection with any thoroughfare shown on a subdivision plat. Neither did it establish an all-for-the-public-fisc policy even as to statutory dedications. Surely, it did not as to nonstatutory dedications. To say that Segraves intended to vest the fee in Highway 90 would be unrealistic. There was no reason to vest any interest whatsoever in the public because of the prior right of way and, a fortiori, there would be no reason for him to grant a fee interest. The Arkansas-Louisiana Gas case held that, absent a declaration or intention otherwise by the landowner, a statutory dedication vested a fee interest. It did not hold that a fee interest would vest from any nonstatutory dedication (if such there be here) where there was no reason for a dedication whatsoever.

Counsel for City of Jennings relies on the case of Chevron Oil Company v. Wilson, 226 So.2d 774 (2nd Cir., 1969). That case-may be factually distinguished in that the pre-existing thoroughfare traversed the property eventually subdivided. To the extent that the Chevron case holding conflicts with our ruling herein, we do not choose to follow it. See also Wilson Motor Company v. McDonald, 69 So.2d 91 (2nd Cir., 1953) and State v. Claitor, 289 So.2d 527 (1st Cir., 1974), both factually different from this case in certain particulars but generally supportive of .our approach herein.

Accordingly, for reasons assigned the judgment of the district court is affirmed. All costs of this appeal are to be paid out of the funds on deposit in the registry of the court.

Affirmed.


text:
    Ewella Chauvin LEWIS, Plaintiff-Appellee, v. William R. HAGAR, Defendant-Appellant.
    No. 5297.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    H. Ward Fontenot, Cameron, for plaintiff-appellee.
    Larry A. Roach, Lake Charles, for defendant-appellant.

      Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Ewella Chauvin Lewis appeals the rejection of her demand against her former husband defendant William R. Hagar for a declaratory judgment recognizing her to be owner of an undivided half interest in Lot 17 of Block B, Highland Park Place No. 2, Addition to the City of Lake Charles, Louisiana. We affirm.

The parties acquired the property in 1963. They paid nothing down and assumed the balance due on a $6,810 mortgage recorded in February 1950. In 1967, plaintiff became dissatisfied with the marriage and without notifying her husband moved from the home taking approximately half the movable family assets with her. A few months after the separation, the parties negotiated the following property settlement which was prepared by plaintiff’s attorney (who no longer represents plaintiff) and signed in his office.

Mr. William R. Hagar

Lake Charles, Louisiana

Dear Mr. Hagar:

This will confirm our understanding as follows:

1) I am filing suit for legal separation in Cameron Parish and intend to prosecute this matter to a final judgment of separation;
2) I have removed from our former residence all of the furniture and items of property which I desire to have; and
3) In consideration of your paying to me the sum of $500, receipt of which is hereby acknowledged, I agree to transfer to you all of my interest which I have in all of the other property owned by us acquired during our marriage. This transfer shall be made immediately after the rendition of the judgment of separation of our marriage.
s/Ewella Chauvin Hagar

The former wife is here seeking a declaratory judgment reforming this inter-spousal agreement made on her initiative prior to the judicial separation or divorce between her and her former husband. She contends in her petition that the agreement was not intended to convey her interest in Lot 17 of Block B; that she only intended to release her interest in an acre of land acquired from her husbánd’s father during the marriage for a recited consideration of $250. She admits she did not see the purchase price paid.

When plaintiff did not proceed to get the legal separation, defendant obtaiñed a Texas divorce in late 1967. The community consisted of Lot 17 Block B, an unimproved one acre tract of land located some distance from the nearest highway, the household goods (of which the valuable ones were in plaintiff’s possession), one three year old Ford that was running and a ten year old Dodge that was not. Both pieces of real property were of marginal value.

Plaintiff makes two contentions: 1) the agreement was made while she and defendant were still husband and wife and under LSA-C.C. art. 1790 they lacked capacity to contract as between themselves; 2) the agreement does not affect Lot 17 of Block B.

Agreements reached under the art. 1790 incapacity are relative nullities and can be ratified when the incapacity is removed. Fisher v. Fisher, 261 So.2d 85 (La.App. 3 Cir. 1972). In Fisher, ratification was accomplished when property received through the agreement was alienated. Mrs. Hagar told her husband she would settle her claims against the community for $500 which would be used as a down payment on a housetrailer. She used the .$500 for the down payment. In an effort to distinguish Fisher, plaintiff contends payment of the $500 was made prior to dissolution of the community and could not therefore have effected a ratification. She contends there was no showing she spent the $500 to purchase her mobile home either before or after the community was dissolved. We agree that the $500 paid for the mobile home does not establish acts of ownership by plaintiff after the divorce.

However, as the trial court held, plaintiff acknowledged the agreement in her pleadings. She did not contend the agreement was invalid, but rather sought to have it recognized with the understanding the settlement did not affect Lot 17 of Block B. We reject the contention that the pleadings only reflect plaintiff’s state of mind or intent at the date of execution of the letter agreement. In paragraph 7 of the petition and in the prayer plaintiff expressly refers to the letter agreement of June 30, 1967. The pleadings and evidence in the record refer to the agreement con-fected at plaintiff’s initiative.

Had plaintiff written a letter to Hagar acknowledging their agreement and seeking an amendment by mutual consent, that would constitute a ratification. The result is the same where she alleges the agreement and prays to have it construed. Although not so labeled, this was an action for reformation of the agreement — not an action to annul it or have it set aside.

While a pleading seeking to annul or set aside an agreement would not ratify it simply because the pleading recited execution of an instrument, we do find ratification in a pleading which seeks to recognize an agreement and have it construed in a way totally inconsistent with its stated terms. Her allegation constitutes a judicial admission that the agreement is valid, and as such is as much a ratification as was the alienation of property which was so recognized in Fisher, supra.

We find no merit to plaintiff’s second contention, the one originally advanced in her petition — that the settlement agreement does not include Lot 17 of Block B. In the third paragraph of the agreement, plaintiff transferred “all” her interest in “all of the other property owned by us acquired during our marriage.” There is no exception to this all inclusive language.

On these facts the trial court properly found the agreement affected plaintiff’s interest in Lot 17 of Block B and properly rejected her demand for a declaratory judgment.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.

WATSON, J., concurs with the additional observation that courts must take a very guarded approach to any agreement between parties executed prior to separation or divorce.


text:
    Helen DARDEAU et al., Plalntiffs-Appellees, v. Bernel FONTENOT and Parkview Pharmacy of Ville Platte, Louisiana, Inc., Defendants-Appellants.
    No. 5296.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.

      Tate & Tate by Donald J. Tate, Mamou, James Edmond Mouton, Lafayette, for defendants-appellants.
    A. Gaynor Soileau, Ville Platte, for plaintiffs-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendants Bernel Fontenot and Park-view Pharmacy of Ville Platte, Louisiana, Inc., appeal the judgment awarding plaintiffs Helen Dardeau and her children ownership of half the shares of stock of Park-view Pharmacy. Defendant Fontenot claims to be sole owner of the stock. We affirm.

Plaintiffs are the widow and children of Dr. J. Winston Dardeau who died March 10, 1974. Fontenot is a pharmacist. The doctor and pharmacist started a pharmacy together in Dardeau’s office in January or early February of 1970. Dardeau built a building to house the pharmacy next to his office and Parkview moved into the new quarters in April 1970. Fontenot arranged to incorporate the business with the understanding each would purchase $15,000 in stock in the Parkview Pharmacy. Fonte-not paid $15,000 cash for his stock when the corporation was created in June 1970, and Dardeau delivered his drug room supply of drugs, etc. valued at from $8,000 to $15,000 +.

Dardeau’s interest in the corporation was to be in the nature of a silent owner, just as Fontenot’s interest in a prior pharmacy corporation had been held in another’s name. The first certificate of stock in Parkview was issued for 150 shares at $100 par value each in Fontenot’s name and was by him endorsed, (or made payable) to Dardeau. The certificate remained in the hands of the attorney who created the corporation and was delivered to Fontenot at Fontenot’s request about a year later. The attorney who created the corporation never discussed the matter with the doctor, but always understood Dardeau owned a half interest in the corporation. Other certificates were issued to Fontenot and his wife for the remaining 150 shares of stock.

Dardeau received Director Fees approximating $20,000 each year from Parkview. After Dardeau’s death Fontenot attempted to pay a $5,000 Director’s Fee to the widow, but she rejected it contending the payment was not in line with prior payments. Dardeau had keys to the building and looked in on the business several times each week. When there was a dispute between Fontenot and Dardeau concerning the need for repair of a delivery truck or the purchase of a new one, the doctor’s position was maintained and the old truck was repaired.

Fontenot contends they always intended that Dardeau might acquire a half interest in the corporation, but the stock was not delivered because the conditions were never met — the conditions being: 1) the doctor never contributed the original $15,000 as capital; 2) the doctor did not close his competing drug room; and 3) the doctor never agreed to a long term lease on the pharmacy building.

There is ample evidence in the record to support the trial court’s conclusion that Dardeau owned half the stock in the corporation and Fontenot owned the remaining half.

The business arrangements between Dar-deau and Fontenot were extremely complicated. Over long periods of time cash was delivered by the drug room employees to Parkview without receipts or records. All drug room employees were paid by Park-view. Fontenot admits Parkview Pharmacy commenced business in April 1970 with almost the entire medicine and drug supply formerly owned by the doctor and maintained in his drug room. Fontenot contends half that drug supply was his by virtue of the fact that he worked in the doctor’s drug room for two months without drawing a salary. This would indicate Fontenot started working for Dardeau and received compensation in the $3500-$8000 per month range for that two months of work. His salary while working for competing concerns before that time had been $1200-$1400 per month.

The agreement concerning the closing of the doctor’s drug room was difficult to comprehend. However, that agreement went into effect when Fontenot moved to the newly completed addition to the building. A clerk employed by Parkview Pharmacy operated the drug room and delivered daily receipts to Parkview. Parkview also paid premiums for hospital and disability insurance for the drug room employees and Dardeau’s family.

The arrangement apparently proved unworkable and was terminated in July 1972. But it was in effect at the time of and six weeks prior to the incorporation of Park-view and the endorsement of the stock certificate for 150 shares to Dardeau. The drug room arrangement continued for two years thereafter. This agreement is incompatible with Fontenot’s contention that closing the drug room was a condition precedent to the transfer of the stock. Dardeau could not have closed the drug room without Fontenot’s consent anymore than he could continue to operate it as a partnership for two years without his consent.

We reject the contention that one partner was expected to discontinue a mutual enterprise in order to become an equal shareholder in another mutual enterprise. Fontenot testified more than once that he would have been satisfied had Dardeau adequately accounted for drug room profits, implying no more would be required. But this problem arose subsequent to his endorsement of half the stock to Dardeau. It could not therefore affect the intended transfer.

After issuance and endorsement, all shares were returned to the attorney who drew them up. Under these circumstances, nondelivery to Dardeau is merely indicative of his desire to be a “silent partner,” and not of an intent to delay effectuation of the transfer of ownership.

There is nothing in the record other than Fontenot’s testimony to suggest he demanded a long term lease. On the contrary, Parkview Pharmacy was such a successful business that Fontenot was able to build a shopping center near the Parkview Pharmacy. The long term lease was not needed because the building housing Park-view was owned by Dardeau, the owner of half the corporate stock.

Several Parkview and drug room employees testified they understood Dardeau owned half the Parkview Pharmacy! Another physician was also of this impression, and Dardeau’s family conducted their business with Parkview as owners of half the business with Fontenot’s knowledge and approval.

Fontenot has failed to establish manifest error in the trial court’s holding that Dar-deau owned a half interest in the corporation.

It is relevant to note that the issue here does not relate to a pre-incorporation agreement, where shares were to be issued in return for a contribution or cash, property or services at the time the corporation is formed. It is on that basis we distinguish Griffith v. Hasha, 315 So.2d 778 (La.App. 3 Cir. 1975). There the stock certificate had plaintiff’s name filled in, but it had not been executed by the officers of the corporation. The certificates came into plaintiff’s hands, but such possession (or delivery) could effect no transfer of ownership because the certificates and shares they represent had never been issued. In this case, the shares were issued. It appears that the parties contemplated an exchange of the interest in the partnership in the drug room and Parkview Pharmacy for a like interest in the corporation.

Fontenot also contends LSA-R.S. 12:624 requires a reversal of the trial court’s judgment. This statute is part of the Uniform Stock Transfer Act, and requires delivery of the stock certificate which was endorsed to Dardeau by Fontenot. Incidentally, the endorsement was witnessed by Fontenot’s wife.

There are cases which seem to support a contention that delivery is essential to effect a transfer. We distinguish those since they deal with the problem presented when there is no other transfer within the terms of the Civil Code or other statute. These cases deal primarily with donations. Succession of McGuire, 151 La. 514, 92 So. 40 (1922); Succession of Hall, 198 So.2d 511 (La.App. 2 Cir. 1967). However, the certificate is recognized only as evidence of ownership of the stock as between the parties, and the Uniform Stock Transfer Act is not intended to provide the exclusive means for evidence of ownership of stock. Where the sale is completed, ownership passes even if delivery has not occurred. Finn v. Ponsaa, 308 So.2d 352 (La.App. 4 Cir. 1975).

Dardeau and Fontenot began their enterprise as partners and intended to exchange the partnership interest for a like interest in the corporation. They operated Parkview and the drug room as a partnership for more than four .months before incorporating. The executed stock certificate endorsed by Fontenot to Dardeau, the operation of the business, the understanding of employees and family members that Dardeau owned half the business, and portions of Fontenot’s testimony support the court’s finding that Dardeau owned half the stock in the corporation. It is relevant to note that all stock certificates were left in the possession of the attorney who created the corporation. Dardeau’s failure to take possession of the executed and endorsed stock certificate does not affect the exchange of interest in the partnership for the interest in the corporation which was accomplished in accordance with LSA-C.C. arts. 2660 and 2661.

The trial court judgment is affirmed at appellants’ costs.

Affirmed.