author: SARTAIN, Judge.

text:
    Lola CASTRILLO v. STIMULATION TECHNOLOGY, INC., et al.
    No. 10934.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 20, 1981.

      Adelaide Baudier, Metairie, for plaintiff-appellant.
    Henderson, Hanemann & Morris, J. Mark Graham, Houma, for defendants-appellees, Touro Infirmary, Dr. Raja J. Dhurandhar and Dr. F. J. Valen.
    Lemle, Kelleher, Kohlmeyer & Matthews, George E. Cain and William S. Penick, New Orleans, for defendants-appellees, Dr. Warren L. Gottsegen and Dr. Dennis M. L. Rosenberg.
    Before REDMANN, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

This litigation arises out of the surgical implantation of a pacemaker. The defendants are Stimulation Technology, Inc., (Stimulation), Touro Infirmary Hospital and Drs. Warren L. Gottsegen, Dennis M. L. Rosenberg, Raja Dhurandhar and F. J. Valen. The trial court sustained peremptory exceptions of prescription as to each of these defendants except Stimulation. This appeal followed. We reverse in part and affirm in part.

On September 13, 1974 Dr. Gottsegen, assisted by Dr. Valen, performed the surgical implantation on plaintiff at Touro Infirmary. Approximately eight to ten days later plaintiff went to the emergency room at Touro because her stomach was “jumping” and a wire from the pacemaker had pierced the skin below the breast and there was bleeding. Dr. Rosenberg surgically removed the pacemaker on October 9, 1974.

On October 8, 1975 plaintiff instituted a products liability action against Stimulation, the manufacturer, and unknown John Doe defendants averred to be the former’s franchise dealers, agents or salesmen. Plaintiff amended her petition on October 26,1976 to assert malpractice claims against Touro Infirmary, Drs. Dhurandhar, Rosenberg, and Gottsegen. Dr. Valen was added as an additional defendant by plaintiff’s second supplemental and amended petition which was filed on February 17, 1977. Plaintiff’s pleadings were further enlarged on March 14, 1978 to allege that the above-named doctors were also agents and/or representatives of Stimulation.

For the purposes of this opinion we consider one of the crucial dates to be October 9, 1974, the date the pacemaker was removed from plaintiff. On this date prescription in medical malpractice claims was governed by C.C. art. 3536. R.S. 9:5628 (Acts 1975, No. 808 and Acts 1976, No. 214) also provides for a one-year prescriptive period but incorporates the earlier jurisprudential rule “or within one year from the date of such discovery.” While some of the claims herein were filed after the effective date of the statute, its retroactive application is not an issue because the same result follows. The question presented herein is when did plaintiff have knowledge, i. e., discover the alleged acts of neglect that form the basis of her malpractice claims.

As a general rule prescription begins to run when plaintiff has actual or constructive knowledge of the alleged tortious act. Dauzat v. St. Paul Fire & Marine Insurance Co., 336 So.2d 540 (La.App. 3rd Cir. 1976); Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1975). On constructive notice the court in Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the court said: “. .. Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.”

On the question of constructive notice and the obligation of the tort victim to make inquiry, it has been held that prescription does not run against one who is ignorant of the existence of such facts as would entitle him to bring a malpractice action, as long as such ignorance is not willful and does not result from his own neglect. Young v. Clement, 367 So.2d 828 (La.1979); Henson v. St. Paul Fire & Marine Ins. Co., 363 So.2d 711 (La.1978). With these rules in mind we turn to the facts in the matter before us.

Shortly after the pacemaker was removed plaintiff received a statement for services rendered from Drs. Rosenberg and Gottse-gen which bore the notation “10/9/74 Removal of nonfunctioning pacemaker.” From this statement she concluded that her problem stemmed from a defective pacemaker and it was for this reason that her initial suit was only against its manufacturer, Stimulation. She contends that it was not until February 26, 1976, when she was advised by counsel for Stimulation, that she learned that the severance of the wire from the body of the pacemaker was possibly due to its improper implantation. She also asserts that it was not until sometime in October of 1976 that Dr. Dhurandhar advised her along the lines of Dr. Rosenberg’s affidavit, which in pertinent part stated:

“(2) The term ‘non-functioning pacemaker’ meant that the pacemaker electrodes were not stimulating the heart as intended but had apparently become dislodged and were stimulating the diaphram. The phrase in no way was intended to mean that the pacemaker was not functioning properly or was defective in any manner but was meant only that the catheter had become dislodged from its proper position.”

Thus, she urges that her successive supplemental and amended petitions all filed within a year of February 26, 1976 against Touro and the defendant doctors were timely-

These defendants, on the other hand, contend that the detachment of the wire, its protrusion through the skin, and stimulation of the diaphram by the electrodes were sufficient occurrences to put her on notice to make inquiry and thus commenced the running of prescription.

Plaintiff takes the position that she took at face value and relied, on the notation in the statement “Removal of non-functioning pacemaker” and saw no need to make further inquiry. The record also reflects that plaintiff had only a sixth-grade education in Nicaragua and a limited knowledge of the English language. Under these circumstances we find her reliance on the statement to be reasonable. Stated another way, the delay in acquiring such facts as would entitle her to bring a malpractice suit was not the wilful result of her own ignorance and neglect. Young v. Clement and Henson v. St. Paul Fire & Marine Insurance Company, above. However, for reasons hereinafter stated, this contention of plaintiff does not avail against defendants, Touro Infirmary and Dr. Dhurandhar.

The record before us consists of the pleadings, two depositions of plaintiff, and affidavits of the defendants. The pleadings clearly reflect that the claims against all of the defendants except Stimulation had prescribed. The burden to prove otherwise rests with the plaintiff. Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir. 1975); Dauzat v. St. Paul Fire & Marine Insurance Co., 336 So.2d 540 (La.App. 3rd Cir. 1976).

Plaintiff’s claim against Dr. Dhu-randhar, who treated her for heart trouble and high blood pressure and recommended the use of a pacemaker, is based on the allegation that he failed to warn her of the inherent risks involved. This allegation is obviously concerned with the non-functioning aspect of a pacemaker for surely it cannot be construed that “advised consent” encompasses the possibility of negligent implantation on the part of another physician. Dr. Dhurandhar had nothing to do with the surgical implantation or removal of the pacemaker. Accepting as true the assertion that a pacemaker may well not function properly and may have to be removed, that this is a risk involved in its use, and that Dr. Dhurandhar was obligated to advise plaintiff accordingly, this risk became apparent on October 9, 1974. Her claim against this defendant on October 26, 1976 had clearly prescribed. The notation on Drs. Rosenberg’s and Gottsegen’s statement could not have misled her.

The claim against Touro Infirmary must be based on some type of solidary liability between this and the other named defendants. None is shown in the record. Stimulation is the manufacturer and the doctors are individual practitioners. The record, except for the broad allegations in plaintiff’s petitions, fails to establish any type of agency, representative, or employment relationship between Touro Infirmary and the other named defendants. These allegations are insufficient to overcome the unrebutted affidavits of the defendants to the contrary. Her claim against this defendant on October 26, 1976 was also untimely.

For these reasons the judgment of the district court insofar as the same sustained peremptory exceptions of prescription on behalf of defendants Drs. Warren L. Gott-segen, Dennis M. L. Rosenberg and F. J. Valen is reversed and said exceptions are overruled. In all other respects the judgment of the district court is affirmed. All costs relating to this appeal are assessed against the parties in the proportions of one-third against plaintiff and two-thirds against defendants, Drs. Gottsegen, Rosenberg and Valen. All other costs are to await a final determination on the merits.

REVERSED IN PART, AFFIRMED IN PART.

      . The admittance record at Touro Infirmary under the category of “Provisional Diagnosis” also contains the statement: “Pace-Maker Failure.”


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Robert Henry MITCHELL, Jr. v. Noelie Ann Matulich MITCHELL.
    No. 12188.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 1980.
    Michael K. Springmann, Metairie, for relator.
    Paula Perrone Tardo, New Orleans, for respondent.
    Before SAMUEL, REDMANN J.J., and STOULIG, J., Pro Tern.
   REDMANN, Judge.

We grant certiorari and reverse, on application of a curator ad hoc for a nonresident spouse, a trial court’s overruling of an exception to venue.

The husband, a resident of Rapides parish, had obtained a judicial separation in Jefferson when the wife was domiciled there over two years earlier. His present petition to the Jefferson court alleges that the wife is domiciled in Texas and that the matrimonial domicile was in Orleans parish.

La.C.C.P. 3941 places nonwaivable venue for an action for separation or divorce “in a parish where either party is domiciled, or in the parish of the last matrimonial domicile ... and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.” The trial judge reasoned that the action for divorce, based on living separate and apart for a specified time after judgment of separation, was part of a “continuous, ongoing proceeding” that began with the filing of the action for separation: and, because venue is determined as of the time of filing, venue therefore was proper for the whole proceeding, both separation and divorce. We recognize the merit of that reasoning, but we conclude that the Legislature has rejected it.

When the 1960 Code of Civil Procedure was enacted to replace the 1870 Code of Practice, companion legislation amended many other statutes. Acts 1960 No. 31’s title showed its purpose was to amend specified laws to “implement” the new procedural Code. Act 31 amended R.S. 9:302 to delete its former provision that one judicially separated could obtain a divorce “from the same court” a year later. This amendment evidently intended to substitute for that “same court” rule the Code of Civil Procedure’s venue rule in art. 3941, allowing suit only at a spouse’s domicile or at the matrimonial domicile.

Reversed.


text:
    Karen CALONGNE v. John S. PEREZ.
    No. 12070.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 6, 1981.
    Richard J. Meunier, New Orleans, for relator.
    Harry R. Cabral, Jr., Metairie, for respondent.
    Before REDMANN and CHEHARDY, JJ., and STOULIG, J., Pro Tern.
   REDMANN, Judge.

We granted review because a temporary support judgment totaling $690 appeared to leave a separated husband only $85 to live on out of his net $775 monthly salary. We now reduce the support.

Alimony and child support were originally fixed at $350 each when the husband had no employment (a business venture having failed) or income and the wife also had no income, and the parties had no means save a house (in which the wife and two children lived) and a car. The correctness of that judgment is not before us, but that judgment unquestionably presupposed that the husband should obtain employment sufficient to pay those sums and, inescapably, to support himself also as well as he was to support the wife. Thus that judgment surely anticipated that the husband would retain at least $350 for his own expenses, and therefore that his earnings at that time should be $1,050 monthly.

The husband did not at first earn that much and fell behind in his payments to the wife. The wife began to earn $525 a month teaching piano in her home. The husband sought reduction of alimony and child support, and the wife sought increase of child support. The trial judge fixed the husband’s obligations at $400 for child support and $251 (payable to the wife) for the house note plus hospitalization insurance (presently costing $39 monthly).

The husband’s gross earnings have recently increased to about $1,071 monthly, but he has a business rent expense of $66, leaving him $1,005 before taxes. The wife’s gross earnings of $525 from piano teaching, however, are reduced to $171 by the $364 expense of child care to enable her to teach.

Although the husband’s parents paid most of the $400 monthly support that the husband did provide, that payment by them cannot be considered means of the husband: if the husband and wife together cannot support the children, the grandparents may be obliged to do so, but only by suing them. Thus the spouses’ total available means is $1,176 gross income plus the advantage of a house whose note is only $251 monthly. Payment of that $251 provides wife and children with housing presumably worth far more because purchased several years ago when prices and interest rates were much lower, and simple fairness requires allowing to the husband his monthly rent cost of $300. After payment of those rents and the $39 medical insurance, there would remain $586 for the two spouses and the two children (about 3 and 4 years old). We believe a fair allocation of these resources, because of the absence of unusual medical or other problems, would not exceed two thirds for the wife and children, or $391 monthly. Because the wife nets only $171 monthly, the husband should pay her $220 monthly in addition to the $251 for the house note, and we therefore change the judgment to provide a total support payment for wife and children of $471.

Because we granted unlimited review, in the interest of efficient judicial administration, we also review the judgment’s making $2,100 past-due support executory and awarding the wife $350 attorney fees. The husband has obtained an order of suspen-sive appeal as to those items, and there is no point in this case’s occupying our docket in the future on those scores.

The past-due support is the result of a judgment ordering payment beginning March 1 of $700 alimony and child support when the husband had no income and paid only $400 a month (largely provided by his parents). The problem is that the husband never appealed that judgment, nor did he earlier seek its reduction. He is therefore bound by that judgment until September 5, when he filed the rule to reduce. But we do make the reduction effective as of the time of his filing. The evidence of nonpayment is only the husband’s testimony that he paid $400 instead of $700 so that his past-due support through the September 1 due date is $1,950.

The husband’s complaint over the attorney fees is that the employment of an attorney was unnecessary because he conceded that he owed $300 more than he paid each month. The husband’s concession, however, is reflected in the amount of attorney fees awarded. Perhaps the fee could have been even smaller had the husband confessed judgment, but even a confession of judgment would require the wife’s attorney to expend some time and entitle her to attorney fees under La.R.S. 9:305 (“except for good cause” a court rendering judgment for past due alimony or child support “shall award attorney fees ... ”).

The judgment is amended to order payment by the husband to the wife of only $471 monthly (payable $361 on the first, out of which the wife is to pay the $251 house note, and $110 on the 15th of each month from September 15, 1980) together with hospital and medical insurance for the children; and it is further amended to reduce the past-due alimony and child support to $1,950; and it is affirmed as to attorney fees (and is not questioned as to visitation).


author: PRICE, Judge.

text:
    Robert H. WILSON, Plaintiff-Appellant, v. The WERNER COMPANY, INC., Defendant-Appellee.
    No. 14372.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Glen H. Smith, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appel-lee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Robert H. Wilson, brought this action seeking recovery for personal injuries received in a construction site accident. The trial court sustained a peremptory exception of no right or cause of action filed by defendant, The Werner Company (Wer-ner), and dismissed plaintiff’s claim as to it. Plaintiff appeals this judgment, and for the reasons assigned, we affirm.

Werner was the general contractor for an addition to the Physicians & Surgeons Hospital (P & S) in Shreveport. Plaintiff was employed directly by Brown Erection Company, a subcontractor on the project. On October 4,1977, plaintiff sustained the injuries complained of when he fell from the third floor of the unfinished addition while engaged in the performance of his duties as an iron worker.

On October 3, 1978, plaintiff instituted this action against Werner alleging that his injuries were caused by the negligence of Werner in failing to provide a safe place to work. Through supplemental and amending petitions, plaintiff added P & S Hospital and certain supervisory personnel of Wer-ner as additional defendants. Plaintiff further amended his petition to allege that his injuries resulted from the intentional acts of Werner in wantonly disregarding applicable safety regulations.

Werner excepted to plaintiff’s allegations on the basis that it was plaintiff’s “statutory employer” under the provisions of La. R.S. 23:1061, and therefore plaintiff’s sole remedy is for workmen’s compensation benefits under La.R.S. 23:1032. The trial court agreed with Werner’s position and sustained the exceptions.

Plaintiff contends on appeal that his injuries were caused by Werner’s intentional acts and thus La.R.S. 23:1032 would not preclude this suit. Alternatively, plaintiff contends that Werner was not his “statutory employer,” therefore La.R.S. 23:1061 is not applicable.

Plaintiff’s primary position on this appeal was developed by his third supplemental petition in which he attempted to allege the basis for the intentional tort exception to the immunities afforded an employer by the compensation statute as provided in La.R.S. 23:1032:

Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

Plaintiff contends that liability under the above provision is predicated upon intentional acts, and that the wording of the statute does not equate an act to a tort. This argument is without merit. This court has recently interpreted § 1032 in Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980). Pertinent to this case is the following statement:

To subject an employer liable for damages sustained by an employee in the course and scope of his employment, it must be alleged that the employer consciously committed an act which the employer actively desired and believed was substantially certain to result in injury to the employee. Otherwise, the employee’s petition fails to state a cause of action for damages against his employer. Johnson, supra.

There are no allegations of facts in plaintiff’s pleadings which indicate that Werner or any of its employees entertained a desire to bring about plaintiff’s accident, or that they could have believed that the result was substantially certain to follow anything they did or failed to do. Plaintiff’s bare allegations that Werner wantonly disregarded applicable safety regulations fail to avoid the primary effect of § 1032 which is to limit an employee’s action against his employer to his workmen’s compensation remedy. Cf. Erwin v. Exello Corporation, 387 So.2d 1288 (La.App. 1st Cir. 1980).

In seeking to limit its liability to plaintiff, Werner relies on the provisions of La.R.S. 23:1061 which provides in pertinent part as follows:

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

In the instant case plaintiff was directly employed by Brown Erection, a subcontractor of Western Concrete Structure, Inc., which was in turn a subcontractor of Werner. Werner purchased erected steel from Western which in turn sublet the actual erection of the steel to Brown Erection, plaintiff’s immediate employer. Plaintiff contends that Werner was not in the business of erecting steel, therefore § 1061 is not applicable because plaintiff was involved in the installation of materials which were unrelated to Werner’s trade, business, or occupation. Plaintiff cites the case of Moak v. Link-Belt Co., 229 So.2d 395 (La.App. 4th Cir. 1969), reversed in part 257 La. 281, 242 So.2d 515 (1970), in support of this argument. The Moak case is inapposite to the facts at hand. In Moak the plaintiff was an employee of a contractor engaged in constructing and installing a conveyor system for a sugar refinery. The plaintiff in Moak was injured and brought suit against the sugar refinery (owner) which in turn interposed the statutory employer defense of § 1061. The court held that the construction and installation of a conveyor system was not part of the business of refining sugar, and therefore the refinery was not a statutory employer and the suit was allowed.

The sugar refinery made defendant in Moak occupied the same posture as P & S Hospital does in the instant case. Plaintiff’s petition clearly alleges that Werner is the general contractor employed by P & S to construct the addition. Consequently, any work on the addition which the general contractor sublet would be part of the general contractor’s regular trade, business, or occupation within the contemplation of § 1061. See Fultz v. McDowell, 344 So.2d 410 (La.App. 1st Cir. 1977); Malone and Johnson, Workers’ Compensation Law and Practice, Section 126 (2d Edition).

It is immaterial that plaintiff alleges himself to be an employee of a subcontractor of a subcontractor of the principal. The purpose of § 1061 is to prevent employers from evading their compensation responsibility by interposing an independent contractor or subcontractor between themselves and their employees. Malone and Johnson, supra Section 121. If Werner is held not to be plaintiff’s statutory employer simply because there are two intermediary subcontractors between Werner and plaintiff, all employers could avoid the effect of § 1061 by simply adding another layer of subcontractors between themselves and workers similarly situated to plaintiff.

Having concluded that Werner is the statutory employer of plaintiff within the meaning of La.R.S. 23:1061, we are of the opinion that the trial court was correct in sustaining Werner’s exception. Plaintiff’s right to receive workmen’s compensation under § 1061 is his exclusive remedy against Werner and this tort action was properly dismissed by the district court. See La.R.S. 23:1032, as amended by Acts 1976, No. 147; Pullig v. Shreveport Packing Co., 342 So.2d 1217 (La.App. 2d Cir. 1977).

For the reasons assigned the judgment appealed is affirmed at plaintiff-appellant’s cost.

      . The mere fact that the relationship between Werner and Western may have elements of sale present will not prevent Werner from occupying the position of plaintiffs statutory employer if the other elements required by § 1061 are present. See Hart v. Richardson, 272 So.2d 316 (La. 1973).

      . The judgment appealed dismissed plaintiffs claim only insofar as it pertained to Werner. We pose no opinion as to the relationship between plaintiff and the P & S Hospital.


author: JASPER E. JONES, Judge.

text:
    Earnestine CROOK, Nee McKoin, Plaintiff-Appellant, v. Warren Shelby WHITE, Defendant-Appellee.
    No. 14376.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    En Banc. Rehearing Denied Feb. 19, 1981.
    See also, La.App., 379 So.2d 1166.
    Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Rankin, Yeldell, Herring & Katz, Bas-trop, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff, Earnestine Crook, appeals a judgment of dismissal which sustained an exception filed by defendant, Warren White, styled “Exception and Motion to Strike Supplementál and Amending Petition En Toto”. The supplemental and amending petition was filed in a suit styled “Earnestine Crook, nee McKoin v. Warren Shelby White” No. 79204 on the docket of the Fourth Judicial District Court for the Parish of Morehouse, Louisiana. The initial suit filed in this matter sought to annul a sale of community property by Earnestine Crook’s husband, Louie V. Crook, to Warren Shelby White, dated March 9, 1979, insofar as the sale affected the Vs interest owned by Earnestine Crook. The suit also sought damages from defendant, Warren White. The supplemental petition asserts essentially the same causes of action but adds plaintiff’s husband as a party defendant.

The theory of plaintiff’s cause of action to set aside the sale is that the property sold was community property and that she owns a Vs interest in it and only her husband signed the deed. She contends the provisions of LSA-C.C. art. 2404 which authorized her husband acting alone and without her signature to convey the community property, were unconstitutional as a denial to her of her U.S. Constitutional Equal Protection rights. In the initial suit, because plaintiff had not joined her husband as a party defendant, White filed an exception of non-joinder of an indispensable party. The trial court sustained the exception of non-joinder, and granted plaintiff 10 days within which to amend her petition by judgment rendered May 31,1979, which is a procedure authorized by LSA-C.C.P. art. 646. Plaintiff failed to amend the petition and join her husband as a party defendant, and the court on June 21, 1979 dismissed her suit with prejudice. Plaintiff appealed this judgment to this court, and the judgment of dismissal was here amended to provide that the dismissal was without prejudice. See Crook v. White, 379 So.2d 1166 (La.App.2d Cir. 1980). The date of the judgment of this court was January 22, 1980 and rehearing was denied on February 29, 1980. Plaintiff did not apply to the Louisiana Supreme Court for writs of review of the decision of this court, and on April 10, 1980 filed the “Supplemental and Amending Petition En Toto” making White and her husband defendants. Only White filed the exception that the judgment appealed be sustained.

Plaintiff assigns as error the judgment of the trial court holding that plaintiff was not entitled to amend her initial suit with the supplemental and amending petition.

Plaintiff in brief makes this statement with regard to the earlier decision of this court, cited supra;

“After appellee’s [sic — appellant’s] motion for a rehearing was denied the matter was remanded to the trial court.”

This statement is incorrect. The judgment of this court did not remand the case to the trial court. The judgment of this court amended the trial court’s judgment to provide that it was a dismissal without prejudice and “As amended, we affirm the judgment.” Id. Crook v. White, supra, at 1168.

Appellant in brief cites LSA-C.C.P. art. 646 (see Fn.l) which provides, among other things, that an appellate court which sustains a plea of non-joinder of an indispensable party:

“... may remand the case for such amendment and further evidence.”

Plaintiff does not clearly articulate her argument based upon Article 646, but we assume she contends this article is authority for her erroneous interpretation of Crook v. White, supra, to the effect that we there remanded the case to permit the joinder of the indispensable party. Article 646 does not require the appellate court to remand, but rather provides that the court within its discretion may remand. See Lechler v. City Civil Ser. Com’n., Etc., 357 So.2d 41 (La. App. 4th Cir. 1978), wherein the court found an absence of indispensable defendant and dismissed plaintiff’s suit without prejudice. The court there stated:

“While the case could be remanded to permit plaintiffs to join them and to afford them an opportunity to defend their positions, we have concluded that a simple dismissal of plaintiffs’ suit without prejudice to bring a new suit against them will be a more orderly procedure.” Id. at 44.

One good reason for this court not to have remanded the case to permit the joinder of the indispensable party was because plaintiff had earlier been given that opportunity by the trial court when it initially sustained the exception of non-joinder by judgment dated May 31, 1979, before that court dismissed the case with prejudice on June 21, 1979.

The effect of the judgment of dismissal without prejudice is to terminate the suit wherein the judgment is rendered. LSA-C.C.P. art. 1844 provides that the effect of a judgment of dismissal with or without prejudice shall be regulated in accordance with articles 1671 through 1673. LSA-C.C.P. art 1673 provides:

“A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.”

A judgment of dismissal with or without prejudice terminates the law suit but the dismissal without prejudice leaves plaintiff free to file a new suit. The comments under Article 1673 provide “a case dismissed without prejudice can be reinstitut-ed; the judgment rendered therein is neither final nor definitive.” These articles of the Code of Civil Procedure recognize that the judgment of dismissal without prejudice, which is now the law of this case, leaves plaintiff’s cause of action therein asserted unaffected, but in order to assert same she is required to institute another suit. The trial court was correct in refusing to permit plaintiff to amend her initial suit which had been terminated by a judgment of dismissal without prejudice.

Plaintiff in brief also makes an oblique argument that she must be permitted to amend her initial suit in order to take advantage of the Fifth Circuit decision of Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979), wherein LSA-C.C. art. 2404, which authorizes the husband to convey community property without his wife’s signature, was declared unconstitutional. Plaintiff’s argument seems to be that even though our procedural law requires her to file a new suit, that this rule of procedure should here be suspended and that she be permitted to amend a suit which has been terminated by a judgment of dismissal. Appellant cites no authority for this contention, and we hold same is without merit. We, however, note that Kirchberg v. Feens-tra, supra, specifically provides that its decision holding Article 2404 unconstitutional shall not apply retroactively:

“We apply our decision today prospectively only, because a holding of retroactive invalidity of article 2404 would create a substantial hardship with respect to property rights and obligations within the State of Louisiana.” Id. at 735.

The Fifth Circuit is here saying that Article 2404 shall only be construed unconstitutional as applicable to operative facts which occur subsequent to the date of that decision which was December 12, 1979. See Lovell v. Lovell, 378 So.2d 418 (La.1979); State v. Robinson, 361 So.2d 864 (La.1978); State v. Collum, 365 So.2d 1272 (La.1978).

Kirchberg v. Feenstra, supra, recognized that purchasers of community property from husbands alone, such as defendant, White, relying upon LSA-C.C. art. 2404 which had always been the law of this state, would be treated unjustly if it was declared that they only received one-half of what they bought until they were told that such transactions in the future would be invalid insofar as the wife’s one-half interest was concerned because the law permitting the husband to sell the wife’s property was invalid.

The deed which appellant here seeks to invalidate was executed on March 9, 1979, many months before the Kirchberg decision, and for that reason Kirchberg would be of no comfort to appellant even if she were entitled to amend her initial suit filed on April 2, 1979.

For the reasons assigned the judgment appealed from is AFFIRMED at appellant’s cost.

      . LSA-C.C. art. 2404 — “The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.
      He can make no conveyance inter vivos, by a gratuitous title, of the immovables of the community, nor of the whole, or of a quota of the movables, unless it be for the establishment of the children of the marriage. A gratuitous title within the contemplation of this article embraces all titles wherein there is no direct, material advantage to the donor.
      But if it should be proved that the husband has sold the common property, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the property, on her satisfactorily proving the fraud.”
      This article was repealed by Act No. 709 of the 1979 legislature effective January 1, 1980.

      . LSA-C.C.P. art. 646 — “When the failure to join an indispensable party is pleaded successfully in or noticed by a trial court, the latter may permit amendment of the petition so as to make him a party, and may reopen the case if it has been submitted and further evidence is necessary. When such failure is pleaded successfully in or noticed by an appellate court, the latter may remand the case for such amendment and further evidence.
      When the failure to join a necessary party is pleaded successfully, the court shall permit an amendment of the petition to join him.”

      . LSA-C.C.P. art. 1844 — “A judgment of dismissal with or without prejudice shall be rendered and the effects thereof shall be regulated in accordance with the provisions of Articles 1671 through 1673.”


text:
    Beatrice BOOKER, Plaintiff-Appellant, v. RICHLAND PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 14378.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Jones, Jones & Jones, Monroe, for plaintiff-appellant.
    Glynn D. Roberts, Rayville, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiff, Beatrice Booker, appeals a judgment rejecting her demand that defendant, Richland Parish School Board, reinstate her as a probationary teacher at Mangham Jr. High School effective November 17, 1978, the date of her termination. Plaintiff’s demand for salary as a probationary teacher from date of termination was also rejected.

Plaintiff was initially employed by the Richland Parish School Board on January 3, 1978 as a probationary teacher at Mangham Jr. High School, and worked through May 1978. Her employment was continued for the 1978-79 school session and she worked from September until November 17, 1978. On November 16, 1978 at a special meeting of the Richland Parish School Board plaintiff was terminated as reflected by the following abstract from the minutes of the meeting:

“Mr. Prisock moved, seconded by Mr. Bell, to approve the following personnel actions:
TERMINATE:
Beatrice Booker Teacher Mangham Jr. High (Terminate due to insubordination) Effective 11/17/78
Vote: Yeas: Mr. Thompson, Mr. Johnston, Mr. Prisock, Mr. Bell, Mr. Gaharan, Mr. Hodges, Mr. Newson, and Mr. Douciere.
Nays: Mr. Coward.
Absent: Mr. Adams.”

The quoted resolution from the School Board meeting was based upon the following document which was submitted to the Richland Parish School Board by Charles M. Tillman, Superintendent of Richland Parish Schools, which document we reproduce as follows:

The manner in which a probationary teacher shall be terminated is set forth in LSA-R.S. 17:442:

“Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor....''

The trial judge found the defendant’s termination of plaintiff was done in the manner required by the provisions of LSA-R.S. 17:442 and for this reason rejected plaintiff’s demands.

Plaintiff assigns as error the trial judge’s determination that R.S. 17:442 has been complied with. She contends the Superintendent of Schools failed to make a written recommendation to the School Board to dismiss plaintiff accompanied with valid written reasons as required by the statute. Plaintiff contends that because her dismissal was not done in the manner required by the statute she is entitled to be reinstated to her position and is entitled to the salary she would have earned had she not been illegally terminated.

In the early cases of Andrews v. Claiborne Parish School Board, 189 So. 355 (La. App. 2d Cir. 1939), and State v. Red River Parish School Board, 193 So. 225 (La.App. 2d Cir. 1939), this court affirmed trial court judgments reinstating probationary teachers because their dismissals had not been accomplished in the manner required by the source legislation of LSA-R.S. 17:442. The court held in these cases that a school board may not dismiss a probationary teacher unless it first receives written recommendations for the termination accompanied by valid written reasons. The criteria for compliance with the statute as set forth in these cases was quoted with approval in the Louisiana Supreme Court case of State v. Bienville Parish School Board, 198 La. 688, 4 So.2d 649 (1941), at p. 651:

“In the case of Andrews v. Claiborne Parish School Board, La.App., 189 So. 355, it is stated in effect that the only method provided by law for the discharge of a probationary teacher is laid down in Act No. 58 of 1936 to-wit: for the superintendent to recommend in writing to the board the dismissal of the teacher, with supporting valid reasons therefor, and the board’s positive favorable action on the recommendation.
In the case of State ex rel Kennington v. Red River Parish School Board, La. App., 193 So. 225, 228, the court stated:
‘It is clear from the language of this statute that as a condition precedent to a school board’s dismissal of a probationary teacher, the superintendent of the parish must submit to the board ‘written recommendations' for such dismissal, accompanied by valid reasons therefor. These should be signed by him officially. It is contended that such reasons need not be in writing, but may be assigned orally. We do not concur in this construction of the quoted law. We think the law-maker intended that the charges against the teacher, upon which his or her dismissal is asked, should be in the same form and of the same dignity as the recommendation itself. They are, in reality, companion acts, should be in writing and preserved in the board’s archives. If this were not true, in many cases neither the teacher nor the public would know why a dismissal occurred. To effect dismissal of a probationary teacher, the law has definitely placed upon both the school board and the superintendent, elements of responsibility which must be specifically discharged by each. Such responsibility may not be shifted.’ ” [emphasis added].

There are numerous appellate decision in the jurisprudence following the rationale of State v. Andrews; State v. Red River and State v. Bienville; supra, to the effect that a probationary teacher may not be dismissed by a school board unless the school board has first received from the superintendent of schools a written recommendation to terminate the teacher, accompanied by written valid reasons supporting the recommendation.

In the relatively late supreme court decision of Palone v. Jefferson Parish School Board, 306 So.2d 679 (La.1975), the court held that probationary assistant principals who had been demoted as assistant principals by a resolution of the school board that was not based upon written recommendations of the superintendent, accompanied by valid reasons, constituted an invalid demotion and reinstated the assistant principals to their positions. The court there cited with approval State v. Bienville Par. School Board, supra. The school board in the Pal-one case contended that the statute had been ultimately complied with when the superintendent submitted a personnel roster to the school board reflecting thereon his recommendation for new assignments for the four assistant principals to other positions. The supreme court rejected the school board’s contention because the personnel roster was not signed by the superintendent of schools and gave no written reasons for the recommendations, all as is reflected from the following quote from the opinion:

“The School Board apparently argues, however, that the school authorities ultimately complied with the statute when the Superintendent recommended the transfer of each of the assistant principals to his former position or one of equal status, and the Board formally approved. From our review of the record, we find that the School Board made the transfers after reviewing assignment rosters signed only by the Executive Assistant Superintendent. These rosters included numerous teachers other than petitioners, subject to routine assignment. It is true that the words, ‘Superintendent’s Recommendations,’ appear in the caption of the rosters, but no reasons for any of the transfers are given. Moreover, by the time the assignment rosters were submitted and approved, three of the petitioners, Palone, Heard, and Heslin, had already attained permanent status as assistant principals by virtue of three years service in those positions. See LSA-R.S. 17:444. We conclude that the action taken does not comply with the statute, requiring the written recommendation of the Superintendent, accompanied by valid reasons.” Palone, at 682. [emphasis added].

A review of the document, which defendant here contends constitutes written recommendations to terminate plaintiff by the Superintendent to the Richland Parish School Board accompanied by valid written reasons, establishes that it fails to meet the criteria set forth by the cited jurisprudence. There is not one word in writing on the document that reflects who prepared it, nor is the term “recommendation” anywhere reflected thereon. The document insofar as could be determined from the writing on it could have been prepared and submitted to the school board by a school board employee other than the superintendent. The school board has received nothing in writing except the words “Terminate (Due to insubordination)”. It could from this writing alone, at the very most, be only inferred that someone desired plaintiff’s dismissal because of insubordination.

The statute requires that the superintendent write a recommendation. State v. Red River Parish School Board, supra, states it must be officially signed by him. State v. Bienville Parish School Board, supra, quoted the language of State v. Red River Parish School Board, supra, with approval. Palone, supra, cited State v. Bien-ville Parish School Board, supra, with approval, and the language quoted from the Palone case clearly indicated that a document signed by an assistant superintendent did not meet the requirement of a written recommendation of the superintendent of the parish school board, even though there was typed upon the personnel roster there discussed “Superintendent’s Recommendations”. Not only was the assignment roster not signed by the superintendent, but it contained no written reasons for demoting the assistant principals. The court in its final reference to Jefferson Parish assignment rosters stated:

“We conclude that the action taken does not comply with the statute, requiring the written recommendation of the superintendent, accompanied by valid reasons. Palone, supra, at 682. [emphasis added].

The document relied upon by defendant in this case does not contain the signature of the superintendent, nor any written indication of by whom it was submitted, nor any written indication as to who was making the inferential recommendation that plaintiff be terminated, and for these reasons alone fails to comply with LSA-R.S. 17:442.

Plaintiff also contends that the document is deficient for the reason that no valid reasons for termination are therein set forth. The only reason set forth for termination is the single word “insubordination”. Plaintiff contends that LSA-R.S. 17:442 requires the reasons for termination be particularized and cites as authority therefor the First Circuit case of Serignet v. Livingston Parish School Board, 282 So.2d 761 (La.App. 1st Cir. 1973) which involved the dismissal of a probationary teacher, wherein the court referred to a letter written by the superintendent which had not been submitted to the school board, stated:

“... Even if it had been so presented, it would not suffice to discharge the Superintendent’s obligation of giving detailed written reasons for recommending dismissal. The charges of ‘incompetence’ and ‘willful neglect of duty’, contained in the dismissal notice, do not fulfill the statutory requirement. Such charges are mere conclusions. To support a dismissal the recommendation must contain a specific recitation of facts sufficient to afford the dismissed teacher opportunity for rebuttal...” Id. at 763.

Defendant contends that the quoted statement of Serignet is an incorrect statement of the law because LSA-R.S. 17:442 makes no requirement that the valid reasons be stated with specificity. Defendant cites the Third Circuit case of Hayward v. Rapides Parish School Bd., 374 So.2d 1281 (La.App. 3d Cir. 1979), which disagreed with the specificity requirement of Serignet. Hayward correctly pointed out that there is no requirement in LSA-R.S. 17:442 for notice to the probationary teacher, nor is he entitled to a hearing for the purpose of giving him an opportunity to rebut the charges. For this reason that rationale of Serignet that there should be such specificity in the charges that the school board employee would have sufficient information to rebut the charges is clearly incorrect. We, however, note that the charges against the school bus driver in Hayward were far more detailed than “insubordination”. The written charges therein set forth by the superintendent of schools to the school board were as follows, to-wit:

“1. Mr. Hayward has driven his bus at an excessive rate of speed on more than one occasion in the vicinity of Marye and Pierson Streets.
2. Mr. Hayward has failed to use his flashing signals when stopping to load pupils in his bus.” Id. at 1282.

We agree with the rationale of Hayward and the case relied upon by it, Chantlin v. Acadia Parish School Board, 100 So.2d 908 (La.App. 1st Cir. 1958), wherein it was recognized that the valid reasons required to accompany the superintendent’s written recommendation do not have to be as detailed and specific as is required of the charges of willful neglect of duty, etc., required by LSA-R.S. 17:443 in an action to remove a permanent teacher. The permanent teacher has a right to a hearing and an opportunity to rebut the charges. We do, however, conclude that in order for the school board to intelligently and fairly review the valid reasons submitted by the superintendent of schools, along with his recommendations for termination, there must be some factual declarations set forth within the reasons in order for the school board to exercise its legislatively designated function of determining whether to follow the recommendations of the school superintendent and dismiss the employee. If the statute contemplated that the school board would rubber stamp the recommendation of the superintendent without making its independent determination of the correctness of that recommendation, then the statute would not have required that the superintendent of schools submit, along with his recommendations, his reasons therefor.

The term insubordination without further factual information gives the school board no information upon which to base its determination to approve the recommendation of the school superintendent.

For the reasons assigned we REVERSE the judgment appealed from and order the Richland Parish School Board to reinstate plaintiff, Beatrice Booker, in her position as probationary teacher at the Mangham Jr. High School. Defendant is also ordered to pay plaintiff all the salary which she would have earned subsequent to November 17, 1978, the date of her termination, together with legal interest from the date of judicial demand until paid.

      . LSA-R.S. 17:444 requires that 17:442 be complied with in order for the school board to demote a teacher from a position in which he has not acquired tenure to a lower position in which he had formerly acquired tenure.

      . LSA-R.S. 17:492 which provides for the dismissal of a non-tenured school bus driver contains the identical language as that found in LSA-R.S. 17:442 relating to the requirements for dismissing a non-tenured school teacher.


author: HALL, Judge.

text:
    James Orlean JOWERS, Jr., Plaintiff-Appellant, v. Shera Cox JOWERS, Defendant-Appellee.
    No. 14379.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Bethard & Davis by James G. Bethard, Coushatta, for plaintiff-appellant.
    Richard N. Ware, Natchitoches, for defendant-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff-husband sued defendant-wife for divorce on grounds of adultery and sought the permanent care and custody of their adopted child, Preston. The trial court granted plaintiff the divorce but awarded permanent custody of the child to defendant. Plaintiff perfected an appeal to this court assigning as error the decision of the trial court awarding custody to defendant rather than plaintiff. We affirm.

Plaintiff and defendant were married on May 30,1970 and established their matrimonial domicile in Coushatta. Preston, who was adopted by the parties, was born October 1, 1974 and has lived with the couple since the day after his birth. The couple has no other children. At time of trial, Preston was five years old.

Plaintiff is a teacher and coach at Cous-hatta High School; during the summer he also serves as the athletic director for the town of Coushatta and for Red River Parish. Defendant, during her marriage, was an elementary school teacher for Red River Parish. She took sabbatical leave in August 1979 in order to devote more time to Preston.

In early 1980, defendant visited her mother in New Orleans during Mardi Gras and again during St. Patrick’s Day festivities. Defendant returned home to Coushat-ta on March 17, 1980. The next day she packed her belongings and moved to New Orleans taking Preston with her. She telephoned plaintiff that evening to tell him she and Preston were in New Orleans and that he, plaintiff, should not come looking for them.

The weekend after defendant left plaintiff, plaintiff traveled to New Orleans to find his wife and child. Plaintiff saw his wife at a New Orleans bar with another man. He followed the couple to several bars then to a trailer, apparently the man’s home. Plaintiff testified that his wife and her date entered the trailer and that, shortly thereafter, all the lights in the trailer were turned off and remained out for at least two hours. Defendant did not deny or controvert this testimony which was sufficient to prove that defendant committed adultery. This is not at issue on appeal.

The only issue presented for our review is whether the trial court abused its discretion in finding that it is in Preston’s best interest that defendant be awarded permanent care and custody of him. Testimony adduced at trial indicates that both plaintiff and defendant have been good and loving parents and that both continue to be fit and capable of rearing their child. Certain factors considered by the trial court favor awarding custody to the father; among these is the fact that Preston would be raised in familiar surroundings by a loving father and loving grandparents who would rear him in a good Christian environment. Other factors favor awarding custody to the defendant-mother; among these is the fact that defendant could, at least for a while, devote her full attention to Preston because she is not employed. Defendant testified that she works with Preston daily to prepare him for his future schooling. She testified that Preston had a speech problem and some difficulty with motor skills but that he has improved since she began working with him regularly. Defendant also testified that since she and Preston moved to New Orleans Preston has become more independent and more disciplined.

Preston and his mother live in a small two-bedroom house in the suburbs of New Orleans. Although her income is limited, defendant testified that she is able to provide for all Preston’s needs. Defendant will be able to devote her full energies to Preston’s development until she has to return to work; by that time, Preston will be in school and the full-time attention of his mother will not be as important as it is now.

The factor considered by the trial court which seems to have tipped the scales in favor of awarding custody to the mother is “the real life fact, based on human experience, that it is often, in many if not most family circumstances, in the best interest of young children to be cared for by their mother.” Thornton v. Thornton, 377 So.2d 417 (La.App. 2d Cir. 1979). In Thornton, we held that no legal preference is to be given the mother in a custody determination, the maternal preference rule having been abrogated by amendments to LSA-C.C. Arts. 146 and 157. These amendments clearly establish that every custody award is to be made in accordance with the best interest of the child or children involved. The trial court did not err in considering the factor we mentioned in Thornton, along with other factors, in making its best interest determination.

As the trial court determined, contrary to plaintiff’s contentions, the evidence does not support a finding that defendant’s moral character is such that it has had or will have a detrimental effect on the child. The record does not reveal any evidence showing that the child was exposed to any bad influences or improprieties while in his mother’s care.

The law governing custody disputes has undergone changes in recent years but one principle has remained constant and applies as much today as when the Supreme Court decided Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). That principle is that the trial court, being in a superior position to evaluate the needs of the child and the abilities of the parents, has great discretion in determining the best interest of the child and its decision will not be disturbed on appeal in the absence of a clear abuse of that discretion. In this case, there was no such abuse of discretion in the trial court’s decision to award custody to the mother.

For the reasons assigned, the decision of the trial court awarding custody to the defendant is affirmed. Costs of this appeal are assessed to the plaintiff-appellant.

Affirmed.


author: MARVIN, Judge.

text:
    TAYLOR & TAYLOR BUILDERS, INC., Plaintiff-Appellant, v. Lamar MOORE et al., Defendants-Appellees.
    No. 14382.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for plaintiff-appellant.
    Brown, Wicker, Lee & Barnes by Joseph S. Cage, Jr., Monroe, for defendant-appel-lee, State of Louisiana.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Monroe, for defendant-appellee, Lamar Moore.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   MARVIN, Judge.

Plaintiff, an unsuccessful bidder on a public construction contract, appeals the rejection of its demands to enjoin further execution of the contract awarded by the State to the successful low bidder. LRS 38:2211 et seq. LRS 37:2150 et seq. We affirm.

Both the plaintiff and the low bidder are licensed contractors under the contractor’s licensing law, LRS Title 37. § 2163 of this law requires that a contractor be licensed in order to be eligible to bid on a proposal in excess of $30,000, that the licensed contractor shall certify that he is licensed and shall show his license number on his bid and on the envelope in which it is contained, and that “[a]ll bids ... not in accord with the[se] ... requirements shall be automatically rejected and shall not be read.”

The successful low bidder placed his contractor’s license number upon the envelope in which he submitted his bid but did not place the number upon the bid itself.

Plaintiff contends that this bid was void and in violation of LRS 37:2163 and that the award of the contract to the defendant bidder was made arbitrarily and unfairly under the Public Contracts Law, LRS 38:2211 et seq.

These laws should be considered in pari materiae, especially where, as here, the instructions to each.bidder informed bidders that they were to place their contractor’s license number on the bid and on the envelope in which it was contained. These laws, however, do not have an identical purpose.

“The purpose of the legislature in enacting this Chapter is the protection of the health, safety and general welfare of all those persons dealing with persons engaged in the contracting vocation, and the affording of such persons of an effective and practical protection against the incompetent, inexperienced, unlawful and fraudulent acts of contractors with whom they contract.”
LRS 37:2150

In Williams v. Board of Sup’rs., etc., 388 So.2d 438 (La.App. 2d Cir. 1980), we said that the purpose of the Public Contracts Law (LRS 38:2211 et seq.) is to protect the public against the award of contracts because of favoritism and possible exorbitant prices and against the unfair and arbitrary selection of a higher bid, by requiring that the contract be let to the lowest responsible bidder who has bid according to the plans and specifications. LRS 38:2212A(1) as last amended, Act 103 of 1977. This section also expressly provides that no public work shall be done except as provided in this Part. The part referred to, of course, is the Public Contracts Law.

We find no violation of the Public Contracts Law in these circumstances. The violation, if any, of the Contractor’s Licensing Law, by the bidder’s failure to place his license number on the bid form, is legally inconsequential when the number was placed on the envelope in which the bid was contained, when the bidder certified that he was licensed, and otherwise conformed to both laws in his bid.

LRS 37:2163 is authority for the public body to reject outright and without reading, a sealed bid when the envelope in which the bid is sealed does not have the bidder’s license number written on the envelope. Otherwise the public body would be required to open the sealed bids of contractors who perhaps are not licensed. Once the bidder’s license number is placed on the sealed envelope containing the bid, the public body is required to open the envelope and to determine whether the bid complies with the proposed contract and with law.

The lowest responsible [licensed] bidder has the right to be awarded the advertised contract, if the contract is awarded to any bidder, and that right is enforceable at law. See Haughton Elevator Division v. State, etc., 367 So.2d 1161 (La.1979). The plaintiff does not contest the tacit finding by the public body that the defendant low bidder was found responsible and licensed.

The express policy that public contracts should be awarded to the lowest responsible bidder, reiterated by the Legislature in Acts of 1978, 1979 and 1980, weighs heavier in these circumstances than the Legislature’s requirement in LRS 37:2163, as amended in 1976, that the contractor’s license number be placed on the bid form and on the sealed envelope. The placement on the envelope of the contractor’s license number indicates that the bidding contractor is licensed and imposes a duty on the public body to open the envelope and examine the bid contained in the envelope to determine whether the contractor is responsible [licensed] and whether the bid is according to the contract, plans, and specifications as advertised. LRS 38:2212.

If the license number is not on the envelope, the public body has no indication that the bidding contractor is licensed, the public body is not under a duty to open the envelope and consider the bid. We leave unanswered the effect of a public body considering a sealed bid from a licensed and otherwise responsible contractor where the contractor’s license number is not written on the envelope in which the bid is contained.

The general thrust of laws relating to the award of public contracts is that the public body must not operate unfairly or arbitrarily and, if a contract is awarded, it shall be awarded to the lowest responsible bidder.

The policy of LRS 37:2163 is upheld when only licensed contractors bid on public contracts. The policy of LRS 38:2212 is upheld when the public body considers a sealed bid on which the contractor’s license number is contained on the envelope and the contract is awarded to that contractor when he is in fact licensed, and is the lowest responsible bidder who has bid according to the contract, plans, and specifications as advertised. There are no elements of unfairness or arbitrariness shown in these circumstances.

In closing, it is appropriate for us to dispose of the appellee’s motion to dismiss the appeal. This motion was filed on the grounds that the work under the contract was 15 percent complete in August 1980 and that we would be deciding a moot issue. Notwithstanding Cox v. Watts, 329 So.2d 917 (La.App. 1st Cir. 1976), where an appeal was held moot because the work under the contract complained of was more than 50 percent complete when the appeal was submitted, we hold that a litigant should not be denied his right of appeal solely on the basis that partial performance of a disputed contract renders the appeal moot. See and compare Verdun v. Scallon Brothers Contractors, Inc., 270 So.2d 512 (La.1972). The appeal of a final judgment is a matter of right. Succession of Damico, 161 La. 725, 109 So. 402 (1925); CCP 2082.

The motion to dismiss the appeal is denied. At appellant’s cost, the judgment appealed is AFFIRMED.


text:
    In the Matter of the Succession of Bertha REED, Deceased.
    No. 14383.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.

      Jones, Jones & Jones, Monroe, for plaintiff-appellant.
    James Sharp, Jr., Monroe, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff, Estella Reed James, appeals a judgment rejecting her demand to annul the judgment of possession in the Succession of Bertha Reed, wherein the defendant, Jerry Miles, Jr., was recognized as decedent’s sole and only heir. The judgment of possession was based upon an affidavit of death and heirship executed by Magnolia Vantley Jackson and Dorothy L. Holmes on March 2, 1979, wherein affiants stated that Bertha Reed died intestate on February 23, 1979 in Ouachita Parish, Louisiana; that she had been married but once during her lifetime, and then to Jerry Miles, Sr. and there was only one child born issue of said marriage, namely Jerry Miles, Jr.; and that said decedent left the said Jerry Miles, Jr. as her sole and only heir.

The thrust of plaintiff’s suit was that Jerry Miles, Jr. was not the child of decedent and that decedent was survived by no ascendants or descendants and was survived by appellant as her sole full sister and by numerous half-sisters, half-brothers, and descendants of two predeceased half-brothers. Plaintiff contends that these collateral relations of decedent are her only heirs. Plaintiff seeks to annul the judgment of possession contending that it was obtained by fraud and ill practices and should be annulled under the authority of LSA-C.C.P. art. 2004.

The trial court found as a fact that decedent and Jerry Miles, Sr. raised defendant as their son and held him out to the public as their son and that appellant and other collateral heirs of decedent never asserted defendant was not the child of decedent until after her death. Evidence in the record supports these factual conclusions of the trial judge.

Defendant testified that decedent always told him that he was her child and held him out to the world as the son of her and his father, Jerry Miles, Sr. He testified he was never told by anyone that he wasn’t the son of Bertha Reed until after her death.

Jerry Miles, Sr. testified he was told by decedent that she was expecting a child, and that in 1954 upon his return from a three week absence, required by his hospitalization, his wife presented him with defendant and told him it was their child. Jerry Miles, Sr. signed a birth certificate for defendant, Jerry Miles, Jr., on December 19, 1955 stating the facts of birth set forth thereon were true and correct. A certified copy of the birth certificate which is in the record reflects that defendant was born August 1, 1954, and that his father was Jerry Miles and his mother was Bertha Reed. This certificate states the mid-wife who attended Bertha Reed was Lucy Singleton, but that she was deceased. The certificate reflects that it was accepted for Registry December 16, 1955 by Dr. W. Carroll Summer, local Registrar of Ouachita Parish, and was filed with the State Registrar of Vital Statistics on December 23, 1955.

Jerry Miles, Sr. testified that defendant was his son born of his marriage to Bertha Reed. Appellant’s attorney, during the trial, stipulated that defendant, Jerry Miles, Jr., was held out throughout his entire school career as a child of Bertha Reed Miles and Jerry Miles, and that all of the school documents would reflect these facts.

There is of record a marriage certificate reflecting a valid marriage between Jerry Miles and Bertha Reed on December 2, 1948. There is included within the record a certified copy of a divorce judgment rendered in a matter styled Jerry Miles v. Bertha Reed Miles, No. 87734 on the docket of the Fourth Judicial District Court on the 24th day of February, 1971, which judgment reflects that plaintiff and defendant therein were each represented by named attorneys, and the judgment provided that Bertha Reed Miles was granted permanent care, custody, and control of Jerry Miles, Jr., and that Jerry Miles, Sr. was ordered to pay her $25 per month child support.

Some of appellant’s witnesses affirmatively testified that Bertha Reed had raised defendant as a child born to her of her marriage to Jerry Miles and held him out as such to the public.

The totality of the evidence establishes that Jerry Miles, Jr. was raised a child of the marriage of Bertha Reed and Jerry Miles, Sr. and was held out to the world as their child.

Appellant offered the testimony of Gladys Reed Mitchell, Eserlean Reed Abram, and Mahaley Reed Turner, her three half-sisters, and the testimony of the two affiants who had signed the affidavit of death and heirship supporting defendant’s possession judgment, Magnolia Vant-ley Jackson and Dorothy Holmes, to establish that Jerry Miles, Jr. was a child born to Hattie Sawyer and given by her to Bertha Reed. Hattie Sawyer neither testified in person nor by deposition, though the record established she was alive and lived in Los Angeles, California only a few months before the trial.

None of these witnesses testified that they saw Hattie Sawyer deliver a baby to Bertha Reed. Gladys Mitchell testified she witnessed Hattie Sawyer give birth to the baby and helped Hattie Sawyer take care of it for several days. She later saw Bertha with a child and knows that the child Bertha had was the same child Hattie delivered because it had the same physical characteristics as Hattie’s baby. The other four witnesses based their conclusions that the child raised by Bertha was the one born to Hattie upon the fact that Hattie appeared to be pregnant but Bertha never was, and upon the fact that they had been told either by Bertha or Hattie, or both, that the child being raised by Bertha was in fact one to which Hattie had given birth.

The trial judge in written reasons for judgment observed that the three of these witnesses who were half-sisters to decedent, Bertha Reed, would be entitled to participate in her succession if defendant was found not to be the child of Bertha Reed. The trial judge noted that the other two witnesses, Magnolia and Dorothy, who had executed the affidavit of death and heirship wherein they stated defendant was born issue of the marriage between Bertha Reed and Jerry Miles, gave totally contradictory information under oath in their trial court testimony wherein they stated Jerry Miles, Jr. was a child born to Hattie Sawyer. For the stated reasons the trial judge found the testimony of these five witnesses lacked credibility and was inadequate to meet appellant’s burden of proving that defendant, who had been held out to be the child of Bertha Reed and Jerry Miles for 25 years, was not the child of Bertha Reed.

The trial judge recognized in his written reasons that the birth certificate of defendant was confusing on its face in the sense that it was executed by Jerry Miles on December 19,1955, establishing the birth of Jerry Miles, Jr. almost a year and one-half earlier on August 1,1954, and reflecting on its face that it was recorded by the local registrar on December 16, 1955, three days before Jerry Miles, Sr. was set forth thereon as having signed same. The trial court further recognized that Jerry Miles’ testimony that he was carried to the health office by the mid-wife, Lucy Singleton, about 4 months after Jerry Miles, Jr.’s birth and signed a birth certificate, was impossible to reconcile with the facts set forth on the birth certificate. It is apparent that the trial judge placed little weight on the birth certificate in reaching his factual conclusions.

Jerry Miles, Sr. testified at trial that he was in the Veterans’ Hospital in New Orleans having back surgery at the time Jerry Miles, Jr. was born. He said that his wife had told him they were expecting a baby before he left and that she was fat. He said upon his return she presented the baby to him as their child, and she was less fat.

Appellant, following the trial court judgment rejecting her demand, filed a motion for a new trial alleging, inter alia, that she had discovered the records of the New Orleans Veterans’ Hospital contained no evidence that Jerry Miles, Sr. was hospitalized there at any time other than March 5, 1965 to March 20, 1965. Appellant contends this was new evidence which would totally destroy the credibility of Jerry Miles, Sr. and for that reason she was entitled to a new trial. The trial judge in his reasons for rejecting the new trial motion assumed appellant could establish at a new trial that the records of the Veterans’ Hospital reflected no other hospitalization for Jerry Miles, Sr. except between March 5 and 25, 1965, and assumed that Jerry Miles, Sr. admitted he was never in the Veterans’ Hospital during the critical time surrounding the birth of Jerry Miles, Jr., and concluded this evidence, along with all prior evidence, would be inadequate to establish that Jerry Miles, Jr. was not born to Bertha Reed Miles because of the “long-standing action of the family which the court had previously noted.”

Appellant assigns as error on appeal the trial court’s refusal to annul the judgment of possession in favor of Jerry Miles, Jr.

It may be established that a child is born of a marriage in the manner provided in LSA-C.C. arts. 194-195:

Art. 194 — If the registry of births and baptisms is lost, or if no such register has been kept, it suffices for the child to show that he has been constantly considered as a child born during marriage. Art. 195 — The being considered in this capacity is proved by a sufficient collection of facts demonstrating the connection of filiation and paternity which exists between an individual and the family to which he belongs.
The most material of these facts are:
That such individual has always been called by the surname of the father from whom he pretends to be born;
That the father treated him as his child, and that he provided as such for his education, maintenance and settlement in life;
That he has constantly been acknowledged as such in the world;
That he has been acknowledged as such within the family.

When the evidence establishes that a child has been considered a child born during the marriage in the manner set forth in LSA-C.C. art. 195, a presumption then exists that the child whose birth is at issue was born of the marriage of those parents who held him out to the world as theirs. See Succession of Rockwood, 231 La. 521, 91 So.2d 779 (1956); Succession of Bates, 227 So.2d 19 (La.App. 2d Cir. 1969). Jerry Miles, Jr., defendant herein, has always used the surname of Jerry Miles, Sr. Bertha Reed Miles and Jerry Miles, Sr. treated defendant as their child and held him out to the world as such and provided for his education as a child born of their marriage. These circumstances were all established by the testimony of some of appellant’s witnesses, by the testimony of Jerry Miles, Sr., by the testimony of Jerry Miles, Jr., by the stipulation that Jerry Miles, Jr. went to school as the child of Bertha Reed Miles and Jerry Miles, Sr., and all his school records reflect them as his parents, by the judgment of divorce between Jerry Miles, Sr. and Bertha Reed Miles, as well as by the affidavit of Jerry Miles, Sr. on the birth certificate of Jerry Miles, Jr. which has been a matter of public record for over 25 years.

The trial judge who saw and heard the witnesses testify concluded that the testimony of the three half-sisters who had a proprietary interest in the outcome of the litigation, and the testimony of the two witnesses who had signed the affidavit of death and heirship stating that defendant was Bertha Reed’s son, and then testified he was not, were not credible evidence sufficient to overcome the LSA-C.C. arts. 194-195 presumption.

The supreme court in the Succession of Rockwood, supra, rejected the testimony of some witnesses who stood to profit materially if plaintiff there was found not to be the child of the mother who had held him out to the public as her child. The court in Rockwood also recognized that alleged statements of the deceased mother to the effect that the child was not born to her were of the weakest sort of evidence and scarcely worthy of consideration:

“Of the four witnesses offered by the defendant (including himself), two were Geneva Derbigny and Pearl Page, sisters whose ages were near that of plaintiff. Unquestionably they, like the defendant, are interested parties; hence, their testimony must be viewed with suspicion. Thus, they testified that they are the legitimate children of Sarah Bryant’s deceased sister. If we hold that plaintiff is not Sarah’s child, and if the testimony of those two witnesses is to be believed, they will inherit their aunt’s estate (even ahead of the defendant Wilson) since it consisted entirely of her separate property. ..
Additionally, the testimony of Geneva Derbigny and Pearl Page given in opposition to plaintiff’s claim consists primarily of statements assertedly made to them by Sarah Bryant — a party deceased. As we have said on numerous occasions testimony of that nature is the weakest sort of evidence, (citations omitted). (In the last cited case this court, in a footnote, stated: ‘And even in cases where the hearsay is receivable as declarations or admissions against interest by the deceased person, it is viewed as the weakest evidence, scarcely worthy of consideration.’)” Id. at 782-783.

It is significant that a substantial portion of the testimony of appellant’s witnesses to the effect that defendant was not the child of Bertha was based upon the statement of these witnesses that Bertha had advised them at a time shortly after Jerry Miles, Jr.’s birth, that he was not her child but was rather the child of Hattie Sawyer.

The factual determinations of the trial judge who saw and heard the witnesses testify shall not be disturbed upon appeal unless we find manifest error, or in other words unless they are clearly wrong. See Canter v. Koehring Co., 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We find the trial court’s evaluation of credibility of appellant’s witnesses entirely reasonable and find no manifest error in his conclusions that the testimony of these witnesses was inadequate to meet appellant’s burden of proof of overcoming the presumption that Jerry Miles, Jr. was the child of Bertha Reed Miles and Jerry Miles, Sr.

Appellant’s contention that the trial judge erred in failing to grant her motion for a new trial is without merit because the trial judge assumed the facts proved, which appellant sought to prove at a new trial, and found such facts did nothing towards strengthening appellant’s evidence in her attack upon the presumption that Jerry Miles, Jr. was born of the marriage of Bertha Reed Miles and Jerry Miles, Sr.

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

      . LSA-C.C.P. art. 2004: “A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on the grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


text:
    Gail DECKANT, Plaintiff-Appellee, v. RYDER TRUCK RENTAL, INC. et al., Defendants-Appellants.
    No. 14384.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 13, 1981.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr. and S. Maurice Hicks, Jr., Shreveport, for defendants-appellants, Ryder Truck Rental, Inc. and Montgomery Ward & Co., Inc.
    Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for plaintiff-appellee, Gail Deckant.
    Blanchard, Walker, O’Quin & Roberts by Jerald R. Perlman, Shreveport, for defendant-appellee, Luther Harris.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

Plaintiff filed this personal injury suit seeking damages for injuries she allegedly sustained when the automobile in which she was a passenger was struck from behind while stopped at a red light. After trial, the district court awarded plaintiff special damages in the sum of $2,077 and $10,000 for pain and suffering, or a total of $12,077. Defendants perfected a suspensive appeal, complaining that the award of damages was excessive. We affirm.

The only issue on appeal is the appropriateness of the trial court’s award of $10,000 for pain and suffering. Defendants-appellants argue that the trial court abused its discretion in granting such a large award, given the factual circumstances of this case. Additionally, appellants argue that plaintiff failed to sustain her burden of proof regarding her damages.

The accident in question occurred on July 20, 1978. Plaintiff was a passenger in her own automobile which was being driven by her boyfriend at the time of the accident. The accident was not severe, damage to plaintiff’s vehicle being minimal (approximately $500). After the police completed their investigation, plaintiff and her boyfriend went to dinner and then shopping, activities they had planned prior to the accident.

Plaintiff testified that she felt stiff and sore the morning after the accident but went to work at Stuart’s Dress Shop as usual. Plaintiff testified she missed some work because of backache but could not recall the dates or lengths of her absences. Twelve days after the accident, plaintiff visited Dr. W. W. Fox, an orthopedic surgeon, who diagnosed her injuries as a sprain of the cervical and lumbar spine. He noted slight spasm in the neck and lumbar spine but found range of motion normal in the neck and back areas. Dr. Fox advised plaintiff to take aspirin-like drugs and to treat the neck and back areas with heat.

Plaintiff returned to Dr. Fox on August 24, 1978, complaining of tenseness in the upper back and neck which was particularly bad on long, hard working days. Dr. Fox prescribed an analgesic and advised plaintiff to continue the use of moist heat on the painful areas. Plaintiff saw Dr. Fox again on October 10, 1978, complaining of continuous pain in the neck area. At this time, Dr. Fox referred plaintiff to a physical therapist for treatment.

Mr. Teitjen, a physical therapist, saw plaintiff twice in December 1978. He testified at trial that plaintiff had muscle spasms in the cervical and lumbar areas of the spine with tenderness and stiffness and a loss of range of motion in her neck and back. Mr. Teitjen’s treatment consisted of hydrocollator packs, ultrasound electrical stimulation and some cervical traction exercises.

Plaintiff saw Dr. Fox again on March 29, 1979 complaining of pain in her neck and upper shoulder. Tenderness and tightness of the neck muscles was noted as well as slight tenderness in the low back unaccompanied by spasm. Dr. Fox again referred plaintiff to Mr. Teitjen for physical therapy. During May and June, 1979, Mr. Te-itjen saw plaintiff about eight times. Mr. Teitjen testified that, on the first of these visits, plaintiff had considerable spasm of the cervical and lumbar paraspinals with decreased range of motion, tenderness and stiffness of the lower back. He continued the treatment begun on plaintiff’s first visit and also put her on a transcutaneous electrical nerve stimulator (TNS unit) to relieve pain and spasm. The last time Mr. Teitjen saw plaintiff she still had tenderness and tightness of the muscles on both sides of her neck and back and still had some loss of range of motion. Plaintiff was instructed to continue using the TNS unit at home.

Plaintiff saw Dr. Fox in August and in December 1979 still complaining of neck and back problems. At time of trial in May 1980, Dr. Fox testified that plaintiff’s periodic spasms, tenderness, etc., could continue for several months to a year.

Plaintiff testified she was a very active person prior to the accident. She enjoyed all sorts of physical activities. Prior to the accident plaintiff engaged in ballet, gymnastic exercises, and yoga. Since the accident plaintiff cannot tolerate being on her feet for long periods of time; therefore, plaintiff can no longer dance or engage in gymnastic exercises without some pain. Additionally, plaintiff has difficulty with some household chores. She still uses the TNS unit to relieve pain and spasm. In the mornings plaintiff engages in a regimen of yoga exercise which stretches the muscles and relieves muscular tension. Dr. Fox testified that this type exercise can be beneficial to persons like plaintiff suffering from tenseness and tightness in the back muscles.

The testimony of plaintiff’s boyfriend, Patrick LeRay, substantiates plaintiff’s claims of continued pain since the accident and of her forced limitation of physical activity. He testified that after the accident she complained of pain in her back almost daily. LeRay, a registered nurse, often massaged plaintiff’s back and neck, noting that the muscles were often knotted and in spasm. LeRay testified that prior to the accident plaintiff was very active, engaging in dancing, gymnastics and sports, but, since the accident, plaintiff’s physical activities have declined because of her back problems.

Appellants argue that plaintiff’s injuries are not so severe as to warrant a $10,000 pain and suffering award and that, under the circumstances of this case, the trial court abused its discretion in making such a large award. Appellants point out that the accident was a minor one and that immediately after the accident plaintiff went grocery shopping and out to dinner. Plaintiff reported for work as usual the following day and continued to work regularly. Appellants argue that plaintiff failed to bear her burden of proof because she failed to produce her co-workers as witnesses to substantiate her complaints of back pain and only presented her boyfriend who testified that plaintiff continued her daily exercise routine after the accident. Appellants argue that continuation of such a strenuous exercise regimen belies the severity of plaintiff’s injuries. Additionally, appellants point out that plaintiff did not seek medical help until 12 days after the accident, after she spoke with her attorney. Appellants argue that plaintiff’s intermittent trips to the doctor with subjective complaints of pain were made merely to bolster her damage claim.

A close review of the record reveals that appellants’ arguments are without merit. Both Dr. Fox and Mr. Teitjen testified to objective signs of plaintiff’s injuries and both testified she was not a malingerer. The testimony of plaintiff’s boyfriend further substantiates plaintiff’s claim. He testified that before the accident, plaintiff engaged in a daily exercise regimen which included yoga, dance and gymnastic exercises. After the accident, plaintiff continued only her yoga or stretching exercises which Dr. Fox testified would be helpful to her back condition. Plaintiff and her boyfriend testified that, after the accident, plaintiff could no longer engage in the strenuous physical activity which she enjoyed prior to the accident.

The evidence establishes that plaintiff sustained a whiplash-type injury in the accident which caused her some pain and disability for which she had been treated for a period of two years at the time of trial. Plaintiff sufficiently proved the extent of her injuries and we find that the $10,000 pain and suffering award is supported by the evidence and is not an abuse of the great discretion of the trial court.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the defendants-appellants.

Affirmed.