text:
    STATE of Louisiana ex rel. Lovelle HILTON v. Judge Jerome WINSBERG, Orleans Criminal Judicial District Court.
    No. 66834.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Lovelle Hilton, applying for writ of mandamus. Parish of Orleans. No. 209-986.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Jimmy Wade WILLIS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-K-1366.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Jimmy Wade Willis, applying for reconsideration of denied writ of July 7, 1980. Parish of Rapides. No. 175-409.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Freddie Lee WILLIAMS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2030.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Freddie Lee Williams, applying for remedial writs. Parish of Caddo. No. 101 —138.

Denied. Since appeal is now final relator must first apply to district court for an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Governor HARRELL v. Frank C. BLACKBURN, Warden, et al.
    No. 80-KH-2015.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Governor Harrell applying for writ of mandamus. Parish of Orleans. No. 270-304.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Steve CUMMINGS v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 80-KH-2001.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Steve Cummings, applying for remedial writs. Parish of West Baton Rouge. No. 46 — 422.

Denied.


text:
    STATE of Louisiana v. Cordovas LAFITTE.
    No. 80-K-2113.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Cordovas Lafitte, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 115 — 470.

Denied.


text:
    STATE of Louisiana ex rel. Alvin HILL v. Frank BLACKBURN, Warden.
    No. 80-KH-1915.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Alvin Hill applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of Orleans. Nos. 249-072 and 227-565.

Denied.


text:
    STATE of Louisiana ex rel. James PRESTON v. Frank BLACKBURN, Warden.
    No. 80-KH-1912.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re James Preston applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. Nos. 206-570, 206-572 and 206-652, Sect. A.

Denied.


text:
    STATE of Louisiana ex rel. Johnny BANKS v. Frank BLACKBURN, Warden.
    No. 80-KH-1795.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Johnny Banks applying for writs of certiorari and mandamus. Parish of East Baton Rouge. No. 6-79-137.

Denied. Relator must first exhaust his remedies in the district court.


text:
    Vera GIANECHINI, Individually and as Tutrix of the Estate of David Gianechini and as Executrix of the Estate of Ernest Gianechini v. The CITY OF NEW ORLEANS.
    No. 80-C-1739.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Vera Gianechini applying for writs of certiorari, prohibition, review and mandamus, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11699.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Rick MENA.
    No. 80-K-1506.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 276-595, Sect. “D”.

Granted.


text:
    STATE of Louisiana ex rel. William E. MASTERSON v. Frank BLACKBURN, Warden.
    No. 80-K-1460.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re William E. Masterson applying for writ of habeas corpus. Parish of Caddo. No. 114 — 392.

Denied.


text:
    STATE of Louisiana ex rel. Johnny T. JOHNSON v. Judge Joseph A. LaHAYE, 27th Judicial District Court, Parish of St. Landry.
    No. 80-K-1451.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Johnny T. Johnson applying for writ of mandamus. Parish of St. Landry. No. 28179.

Denied.


text:
    STATE of Louisiana ex rel. McKinley REDDIX v. Frank BLACKBURN, Warden, et al.
    No. 80-K-1437.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re McKinley Reddix applying for writ of habeas corpus. Parish of Orleans. No. 25A-456.

Writ denied.


text:
    STATE of Louisiana ex rel. Billy Ray WILLIAMS v. Frank C. BLACKBURN, Warden et al.
    No. 80-KH-1646.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Billy Ray Williams applying for remedial writ. Parish of Orleans. No. 267-909.

Denied. Moot.


text:
    STATE of Louisiana ex rel. August GORDON, Jr. v. Frank C. BLACKBURN, Warden.
    No. 80-K-1372.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re August Gordon, Jr., applying for remedial writ. Parish of Jefferson. No. 74-66, Div. “H”.

Denied.


text:
    STATE of Louisiana ex rel. Larry SMITH v. Frank BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67162.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Larry Smith, applying for reconsideration of denied writ of habeas corpus of June 13, 1980. Parish of Orleans. Nos. 244-172 and 244-173.

Denied. -


text:
    STATE of Louisiana ex rel. Rickey TRUVIA v. CLERK OF COURT, CRIMINAL DISTRICT COURT, SECTION I, PARISH OF ORLEANS, State of Louisiana.
    No. 67577.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Rickey Truvia, applying for writ of mandamus. Parish of Orleans. Criminal District Court, Section I. No. 257-168.

Denied.


text:
    Willie Erwin HOLLEY et al. v. COMMERCIAL STANDARD INSURANCE COMPANY et al. Mrs. Nola E. FOSTER et al. v. Vardeman YATES et al.
    No. 80-C-1639.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Vardeman Yates applying for writs of certiorari, prohibition, and mandamus, to the Second Circuit, Court of Appeal, Parish of Webster. No. 14,373-374.

Denied.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. John Duane WADE v. STATE of Louisiana.
    No. 80-KH-1632.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re John Duane Wade applying for remedial writ, 32nd Judicial District Court. Terrebonne Parish. No. 93466.

Writ denied.


text:
    STATE of Louisiana ex rel. James PRESTON v. Judge Charles R. WARD.
    No. 80-KH-1615.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re James Preston applying for writ of mandamus. Parish of Orleans. Nos. 206-570, 206-572 and 206-652, Sect. A.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John Wesley ALLEN v. Ross MAGGIO, Jr., Warden, Hunt Correctional Center.
    No. 80-KH-1613.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re John Wesley Allen applying for writs of certiorari, prohibition, mandamus, habeas corpus and remedial. Parish of Orleans. No. 257-653.

Denied.


text:
    STATE of Louisiana v. Raymond A. RUSS.
    No. 80-K-1611.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus, to the Twenty-Fourth Judicial District Court in the Parish of Jefferson. No. 80-0565.

Denied.


text:
    Gustave KAPLAN, Individually and for the Estate of the Minor Plaintiff Linda Kaplan v. MISSOURI PACIFIC RAILROAD CO. et al.
    No. 80-C-2234.
    Supreme Court of Louisiana.
    Sept. 29, 1980.
   In re Missouri Pacific Railroad Co., et al., applying for writs of prohibition, mandamus, certiorari and stay order. Parish of Rapides. No. 86835.

Not considered. Relators obtained the relief sought here by order of the court of appeal.


author: FORET, Judge.

text:
    Jack Allen SHANK et al., Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7856.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1980.
    Rehearings Denied Dec. 1, 1980.
    Writs Refused Jan. 26,1981.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Larry A. Stewart, Alexandria, for defendant-appellant-appellee.
    Smith, Ford & Clark, Simon Chris Smith, III, Leesville, for intervenor-appellee-ap-pellant.
    Hall, Lestage & Lestage, H. O. Lestage, III, DeRidder, for defendant-appellee-ap-pellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for interve-nor-appellee.
    Edwin A. Cabré, Leesville, for plaintiff-appellee-appellant.
    Before FORET, STOKER and La-BORDE, JJ.
   FORET, Judge.

This is a wrongful death action arising out of an automobile-pedestrian accident, in which Claudette Watts Shank sustained injuries resulting in her death.

Plaintiff is Jack Allen Shank, husband of the decedent, filing suit herein on his own behalf, and on behalf of the minor children, Tammy Leigh Shank, Elizabeth Ann Shank, and Claude Wesley Shank. Named defendants are Reginald A. Strain and his automobile liability insurer, State Farm Mutual Automobile Insurance Company (hereinafter State Farm); Henry Fischer and his automobile liability insurer, Government Employees Insurance Company (hereinafter GEICO); State Farm and GEICO, again, allegedly as the underinsured insurers of Jack Shank ; intervening in the suit is Zurich Insurance Company, the workmen’s compensation insurer of Robert King d/b/a Marco’s Pit Grill, the employer of decedent, Claudette Shank.

After trial on the merits, the trial court found that there was no negligence on the part of Reginald Strain, and therefore he and his insurer, State Farm, were not liable to the plaintiffs. However, the trial court held that Henry Fischer was negligent, such negligence being the proximate cause of the accident, and accordingly judgment was rendered in favor of plaintiffs and against Henry Fischer and his liability insurer, GEICO. The trial court also rendered judgment in favor of Zurich Insurance Company, entitling it to be paid by preference and priority over plaintiff the amount of $8,000.00 (a stipulated amount).

Defendant, Henry Fischer, and his liability insurer, GEICO, prosecute this appeal and assign as error the trial court’s finding of negligence on the part of this defendant. The determinative issue presented by this appeal is the negligence vel non of Henry Fischer.

FACTS OF ACCIDENT

Henry Fischer and his wife had been traveling north on South Fifth Street shortly before the accident. This is a four-lane highway, and Fischer was traveling on the inside north-bound lane. He approached the location where the accident took place and stopped to make a left turn across the two south-bound lanes of the highway. At that time, he noticed the decedent, Mrs. Shank. He watched her cross the two south-bound lanes and stop approximately three to four feet in front of his truck on the double yellow line in the center of the highway. Henry Fischer then motioned to the decedent to get out of the way or move on.

Both he and his wife testified that the decedent did nothing and in no way acknowledged the signal. The decedent proceeded to walk in front of the Fischer vehicle approximately a minute after he had signaled to her. Fischer began his left turn as soon as she had cleared the front of his truck.

Both Mr. and Mrs. Fischer testified that they saw Mrs. Shank pause for a brief moment at or near the line dividing the two north-bound lanes. Fischer further testified that as he was making his turn, he saw Mrs. Shank begin to run across the outside north-bound lane. He did not see her get hit by the other vehicle.

The alleged negligent conduct of which the plaintiff complains is the signal given by Fischer to the decedent. The trial judge found that Fischer may have done more than signal to the decedent. However, there is no evidence in the record on which to base such a finding. We conclude that such a finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find that Fischer did nothing more than signal the decedent to move on.

Plaintiff argues that the decedent was entitled to rely on Fischer’s signal and did in fact do so. Plaintiff has presented no evidence in support of this argument. On the contrary, the evidence shows that the decedent passed safely in front of Fischer’s vehicle. She then paused in between the two north-bound lanes of traffic. She then attempted to cross this lane where she was struck by the vehicle driven by Reginald Strain. Fischer did not owe decedent any duty to assure her safe passage across the remainder of the highway once she had crossed in front of his truck.

Plaintiff has cited no authority for his argument that, based on his conduct, Mr. Fischer owed a duty to the decedent to assure her safe crossing of the highway. We join with our brothers of the Fourth Circuit Court of Appeal and reject the proposition that an adult may step blindly onto a highway solely in reliance upon the signal of a third party. Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4 Cir. 1975). We hold that Fischer was not negligent in motioning to the decedent to move from the front of his vehicle.

We turn now to the issue raised by the plaintiff in this appeal. Plaintiff argues that the trial judge was wrong in concluding that the defendant, Reginald Strain, was not negligent. The trial judge found that Reginald Strain did not see Claudette Shank in time to avoid the accident. He also found that Reginald Strain could not have reasonably been expected to see Mrs. Shank in time to avoid striking her. We agree with his findings.

The evidence shows that the decedent appeared suddenly between the two northbound lanes of traffic and paused briefly. She then attempted to run to the east shoulder of the highway. In Mathews v. Allstate Automobile Insurance Company, 370 So.2d 1331 (La.App. 2 Cir. 1979), writ denied, 373 So.2d 526 (La.1979), the court was concerned with a factual situation much like the one presented here. We agree with that court’s proposition that Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978), did not do away with the requirement that a driver must be found negligent before he can be held liable to a pedestrian whom he injures.

The evidence shows that Reginald Strain was traveling at or a bit under the speed limit immediately before the accident. The evidence also shows that when Mrs. Shank appeared on the line dividing the two north-bound lanes, Strain was approximately eight feet away from the point of impact. Mrs. Shank attempted to run across the outside north-bound lane at this time. Unfortunately, she was struck by the vehicle driven by Strain. This evidence supports the trial court’s finding of no negligence on the part of Strain. We therefore affirm the trial court’s finding and hold that Reginald Strain is not liable to plaintiff.

Accordingly, plaintiff’s suit is dismissed against all defendants.

All costs of this appeal are assessed against plaintiff.

REVERSED IN PART AND AFFIRMED IN PART.

      . It was stipulated at trial that Elizabeth Ann Shank and Claude Wesley Shank were the only issue of the marriage between Jack Shank and decedent, and that Tammy Leigh Shank was born to decedent prior to her marriage to plaintiff, Jack Shank. The issue of the procedural capacity of Jack Shank to sue on behalf of Tammy was not raised at trial by any of the defendants, and although it is raised on appeal, we do not confront that issue because of the result which we reach herein.

      . GEICO alleged at trial and on appeal that the policy of automobile liability insurance and uninsured motorist coverage to Shank was expired on the date of the accident; again, we do not confront this issue because of the result which we reach herein.

      . The trial court also rendered judgment against State Farm Mutual Automobile Insurance Company, uninsured motorist insurer of plaintiff, Jack Allen Shank. State Farm has taken a devolutive appeal from the said judgment. For the reasons hereinafter expressed, we reverse said judgment.


author: JASPER E. JONES, Judge.

text:
    SUCCESSION of Virgie Griggs BRICE.
    No. 14242.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      Robert G. Pugh, Shreveport, for plaintiffs-appellees Marjorie Gayle Taylor & Ronald L, Taylor, Adm. of the Estates of Minors, Ashley E. Taylor and David L. Taylor.
    Bolin & Elkins by Bruce M. Bolin, Min-den, for defendants-appellants James Arnold Griggs, John Bennett Griggs, and Sicily Ora Lindsey Griggs.
    Richie & Richie by John A. Richie, Shreveport, for co-executors James Arnold Griggs, John Bennett Griggs, and Sicily Ora Lindsey Griggs.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Appellants, James Arnold Griggs and John Bennett Griggs, in their capacity as co-executors of the will of their deceased sister, Virgie Griggs Brice, and as agents for their mother, Sicily Ora Griggs, appeal a judgment which construes the decedent’s will to bequeath to her mother only the forced portion.

Appellees have filed a motion to dismiss the appeal taken by James and John Griggs in their capacity as co-executors contending that the appeal was untimely.

The case was argued and submitted on June 25, 1979; written reasons for judgment were assigned and filed on July 23, 1979; and the judgment was signed August 3, 1979. The clerk gave no notice of judgment as required by LSA-C.C.P. art. 1913.

On August 9,1979, a motion for new trial was filed by “James A. Griggs and John B. Griggs, legal representatives of Sicily Ora Griggs”, and it was denied by judgment signed December 11, 1979. An order of suspensive appeal was obtained on January 8, 1980 by the co-executors and Sicily Ora Griggs, and the appeal bond was posted the same day.

Appellees contend that because James and John Griggs did not file a motion for a new trial in their capacity as co-executors that their appeal taken as co-executors more than four months after the judgment of August 3 is untimely because the suspen-sive appeal delays expired September 13, and the devolutive appeal delay expired October 15. Appellees cite LSA-C.C.P. arts. 2162, 2123, and 2087. The argument advanced for dismissal of the appeal is extremely technical and considering the great favor with which appeals are viewed under our law it may well be that the motion for new trial filed by James and John Griggs as representatives of Sicily Ora Griggs could be construed to have suspended the judgment of August 3 to the extent that the delays for taking their appeal as co-executors did not begin to run until the new trial motion was denied, and therefore it was timely. See Thurman v. Star Electric Supply, Inc., 283 So.2d 212 (La.1973). However, we find it unnecessary to decide whether the delays for appeal were suspended by the new trial motion filed because we find that the delays for taking an appeal by the co-executors had never commenced to run at the time they perfected their appeal. Where no motion for new trial has been filed, a suspensive appeal must be taken within 30 days and a devolutive appeal within 60 days of the expiration of the delays for applying for a new trial as provided for in LSA-C.C.P. art. 1974. See LSA-C.C.P. arts. 2123 and 2087. The delays for applying for a new trial under Article 1974 do not commence to run until the day after the clerk has mailed the notice of judgment when it is required by LSA-C.C.P. art. 1913.

LSA-C.C.P. art. 1974: “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

LSA-C.C.P. art. 1913: * * *

“Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.”

This case was argued June 25, 1979. It was not then decided. It was submitted (taken under advisement) and decided with written reasons July 23 and judgment was signed August 3. Under these circumstances notice of judgment was required by the second paragraph of LSA-C.C.P. art. 1913, and none was sent. The seven day delay for applying for a new trial “commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.” LSA-C.C.P. art. 1974.

Because there was no notice of judgment, the delay for applying for the new trial has not commenced to run. Since the appeal delays provided for in LSA-C.C.P.. arts. 2123 and 2087 do not commence until the new trial delays have expired, they had not commenced to run when the co-executors took their appeal four months after judgment was signed. The appeal was timely. The motion to dismiss has no merit.

Virgie Griggs Brice died July 6,1978, and her will dated June 4, 1964 which was probated in these proceedings, provides:

“I, Virgie Griggs Brice, being of sane and sound mind, and realizing the uncertainties of life, do make this my last will and testament.
1.I desire that all my just debts and funeral expenses be paid;
2. After the payment of my just debts and funeral expenses, I will and bequeath to my niece, Marjorie Gayle Griggs, all property of which I die possessed, whether the same be real or personal; and
3. I desire that her children will share equally with her. In case of the death of one of the heirs, I desire that share to be equally divided among the remaining heirs;
4. I desire that any necessary portion of my estate be used to provide for the treatment and comfort of my mother, Mrs. Ora Lindsey Griggs, throughout her lifetime;
5. I appoint my two brothers, James Arnold Griggs, and John Bennett Griggs executrix of this my last will and testament;
6. I desire that $1500 be provided each of my brothers for expenses incurred in the settling of my estate.
This will has been wholly written, dated and signed by me in my own hand at Shreveport, Louisiana on this fourth day of June, 1964.
Virgie G. Brice /s”.

James and John Griggs accepted their appointment as executors of their sister’s estate by the terms of her will and proceeded with the administration of the succession. While the succession was under administration they were appointed by their mother, Sicily Ora Griggs, as her agents to administer all of her affairs including her interest in the estate of her daughter Virgie Griggs Brice.

The decedent left no descendents and her father had predeceased her. She was survived by her mother as her only forced heir.

A review of Paragraphs 2 and 3 of decedent’s will reflects that she bequeathed all of her property to her niece, Marjorie Gayle Griggs, in Paragraph 2; and in Paragraph 3 declared that she desired Marjorie’s children (of whom there were two) to share equally in the bequest. These bequests of all of decedent’s property are in conflict with Paragraph 4 of the will and the mother’s legitime. Paragraph 4 of Virgie Brice’s will could be construed as a bequest to her mother of all of testatrix’s entire estate if all of it should be required to provide for her mother during her lifetime.

James and John Griggs, and Marjorie Gayle Griggs Taylor and her husband, Ronald L. Taylor (administrator of the estate of Marjorie’s minor children Ashley and David Taylor), were unable to agree upon the interpretation of decedent’s will.

The co-executors filed a Louisiana Inheritance Tax return and paid taxes upon the estate based upon declarations that Marjorie inherited one-fourth of the estate, each of her children inherited one-fourth of the estate, and decedent’s mother inherited one-fourth of it.

After the administration was very near complete and the inheritance taxes paid, Marjorie and Ronald Taylor, as administrator of the estate of the two minor children of Marjorie, filed a rule against James and John Griggs, co-executors of decedent’s succession, seeking to be sent into possession of their legacies subject to payment of the remainder of the debts which consisted principally of attorney fees and fees and expenses of the executors. The petition alleged that because of the ambiguity in the will of the testatrix, that the parties had agreed to interpret the will as bequeathing one-fourth of decedent’s estate to Marjorie, one-fourth of decedent’s estate to each of her two children, Ashley and David, and the remaining one-fourth of the estate to decedent’s surviving mother and forced heir, Sicily Ora Griggs. The co-executors answered the rule and while admitting there had been a tentative agreement to interpret the will in the manner alleged by Marjorie and Ronald Taylor, the co-executors denied there had been a definitive agreement between the parties. The co-executors alleged “the completion of this succession may require a definitive interpretation by the court of decedent’s will and strict full compliance with such interpretation”. The executors prayed for the dismissal of the rule.

The minutes reflect that the rule was set for trial on June 25th, at which time it was argued and submitted. No testimony was taken. The trial judge in his written reasons for judgment rendered July 23, 1979, stated:

“The case was submitted on a stipulation of facts and the record of the succession. Although oral argument was held, neither of the attorneys have submitted briefs as to their respective positions or contentions.”

The trial judge stated that the stipulation of facts reveal a tentative agreement as to the interpretation of the will, but that it had not been finalized. The trial judge specifically recognized that there was no evidence taken to aid and assist him in interpreting the will, and that there was nothing contained in the stipulation of facts which would assist the court in interpreting the will. We have examined the stipulation and agree with the trial judge that it does not provide enough facts to determine what the testatrix intended when she made the ambiguous and conflicting bequests contained in her will.

The trial court found Paragraph 4 of the will which related to testatrix’s mother to be “unclear and ambiguous”, and noted that it was the duty of the court to determine whether it was the intent of the testatrix to “bequeath the forced portion of her estate to her mother, or whether some other arrangement was intended such as, perhaps, an annuity or a life usufruct”. The court then concluded there was not sufficient language in Paragraph 4 to reflect that the testatrix intended an annuity or usufruct. The trial court stated there was no language in Paragraph 2 (the bequest to Marjorie) or Paragraph 3 (the bequest to Marjorie’s two children) indicating that these bequests were only of the naked ownership, and concluded these observations supported the conclusion that the testatrix did not intend to bequeath to her mother a usu-fruct. The trial court then determined the language in Paragraph 4 wherein the testatrix left to her mother “the necessary portion” established the testatrix intended to bequeath to her mother the forced portion of the estate as required by law. The court decided under the will of decedent that Marjorie would receive one-fourth, her two children would each receive one-fourth, and the decedent’s mother would receive one-fourth, and judgment was signed containing these adjudications.

Only James and John Griggs appeal. They assign as error the trial court’s finding that the bequest to the decedent’s mother was ambiguous. Appellants contend that the will should have been construed to have given the mother one-fourth of decedent’s estate in full ownership and a usu-fruct over the other three-fourths of the estate. Appellants alternatively contend that the court should have construed the will as creating a debt against the estate during the lifetime of the mother.

The trial court’s observation that the will was ambiguous is clearly correct. The first two bequests contained in the will would seem to reflect an intent on the part of the testatrix to leave all of her property in full ownership to her niece Marjorie, and to Marjorie’s two children in equal proportions. There is no indication in the language of the bequests in Paragraphs 2 and 3 of the will that these legacies are to be subject to a usufruct in favor of testatrix’s mother, nor is there any indication that these legacies are to be subject to the forced portion which is reserved by law to decedent’s mother.

The language in Paragraph 4 of the will (“any necessary portion of my estate be used to provide for the treatment and comfort of my mother”) contains no limit on the amount of decedent’s estate that could be used for this purpose. Although the decedent’s estate is substantial, it is foreseeable that its entirety could be consumed in providing for “treatment and comfort” of decedent’s mother, and it is possible that decedent may have intended to have provided for this contingency when she included this paragraph within her will. There is no indication that this bequest to her mother shall first be satisfied before the bequests to Marjorie and her children are fulfilled. There is no way to ascertain from the contents of the will alone the intentions of the testatrix as mandated by LSA-C.C. art. 1712. Only by using extrinsic evidence which is authorized by LSA-C.C. arts. 1714 and 1715 may the intent of the testatrix be determined.

In the decision of Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966), the court made the following statement with regard to the method to be used in interpreting an ambiguous will:

“When, however, the language of a will is ambiguous, resort must be had to all circumstances which may aid in ascertaining the testator’s intention. LSA-C.C. Art. 1715; Succession of Smart, 214 La. 63, 36 So.2d 639; Succession of Montegut, 211 La. 112, 29 So.2d 583; Miller v. Hirsch, 110 La. 259, 34 So. 435.
Article 1715, LSA-C.C. provides:
‘When, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.’ (Emphasis ours)
In Succession of Smart, supra, this Court succinctly stated the rule as follows:
* * * ‘Where there is ambiguity in the description of the legatee, or the thing which the testatrix intended to bequeath, or the quantum or portion of the legatee, or where there is doubt as to the sense in which the words are used by the testatrix, resort may be had to extrinsic evidence. In fact, all circumstances throwing any light on the testatrix’s intention must be considered. Revised Civil Code, Articles 1714, 1715 and 1716. Succession of Montegut, 211 La. 112, 29 So.2d 583.’
When a will is ambiguous, the court uses extrinsic evidence to determine what the words of the testator as written actually mean. The evidence is used to resolve ambiguity, not to rewrite the will or do violence to its terms. The court seeks to lay bare the intention of the testator. LSA-C.C. Arts. 1712, 1715.” Id. at 6-7.

In this case the language of the testator in the will left it uncertain as to whether the testator intended to bequeath to his wife full ownership or to only give her a usufruct. By use of extrinsic evidence the court was able to determine that the intent of the testator was to give his wife full ownership. See also the Succession of Cardone, 271 So.2d 338 (La.App.2d Cir. 1972), where the court used extrinsic evidence to determine what property the testatrix intended to bequeath when she used the term “my home place”.

The litigants, who were necessarily aware of the ambiguity contained in the will, offered no extrinsic evidence at the time the rule was tried for the purpose of establishing what the intentions of the testatrix may have been when she made the bequests contained in her will. Appellants now, while first contending the will is not ambiguous, a position completely untenable, have filed in the alternative a motion to remand the case to the trial court for the purpose of offering extrinsic evidence to show the true intent of the testatrix.

In the Succession of Montegut, 211 La. 112, 29 So.2d 583 (1947), the court held that a clause in the testatrix’s will was ambiguous, and though extrinsic evidence had been taken at the trial of the case, some of which related to the relationship between testatrix and the legatees, and the circumstances surrounding them, the court found the evidence in the record with regard to this issue insufficient to determine the dispute. The court there remanded the case for:

“. . . parties litigant (both appellees and appellants) to introduce evidence in proof of any and all circumstances which may aid in the discovery of the intention of the testatrix with reference to the controverted provision, the evidence, of course, to be otherwise admissible and material.” Id. at 588.

This court may remand a case to the trial court for the taking of additional evidence where it is necessary to reach a just decision. LSA-C.C.P. arts. 2082 and 2164; Gallagher v. Gallagher, 248 La. 621, 181 So.2d 47 (1965); Nereaux v. Rivet, 228 So.2d 172 (La.App. 1st Cir. 1969).

The trial judge here performed his function of deciding the case, but he recognized that the will was ambiguous and the party litigants had supplied him with no extrinsic evidence to aid him in reaching the testatrix’s intent. He therefore used the only evidence available, the testament itself, to perform his function of deciding the case. The decision that the will leaves to the testatrix’s mother only her legitime was based upon an interpretation of Paragraph 4 to the effect that testatrix bequeathed to her mother “the necessary portion”, the trial court apparently concluding the testatrix was giving to her mother what was necessary to meet the requirements of the forced heirship law of this state. A review of Paragraph 4 of the will establishes while it uses the term “necessary portion” there is additional descriptive language (“of my estate be used to provide for the treatment and comfort of my mother .. . throughout her lifetime”) which could be construed as making available to her mother far more than the forced portion if same was needed to provide her mother with “treatment and comfort”. This observation makes it apparent that the trial judge’s conclusion that testatrix intended for her mother to receive only the forced portion is a determination that cannot be arrived at from a review of the will, and it becomes apparent that only by taking of extrinsic evidence can the intent of the testatrix be arrived at and justice done in this case.

We REVERSE and set aside the judgment appealed from and REMAND the case to the trial court for the purpose of permitting appellants and appellees to introduce evidence in proof of any and all circumstances which may aid in the discovery of the intention of testatrix with regard to the bequests made to her mother, her niece, and the children of her niece, and direct the trial judge, after this evidence is submitted, to render judgment in accordance with law.

      . LSA-C.C.P. art. 2162-“An appeal can be dismissed at any time ... because there is no right to appeal ...”

      . LSA-C.C.P. art. 2123-“Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

      . LSA-C.C.P. art. 2087-“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

      . LSA-C.C. art. 1712: “In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”

      . LSA-C.C. art. 1714: “In case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed.”

      .LSA-C.C. art. 1715: “When, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.”


author: MARVIN, Judge.

text:
    Wilbert CALHOUN, Plaintiff-Appellant, v. ADMINISTRATOR OF the DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana and Gulf Coast Catering Co., Defendants-Appellees.
    No. 14283.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    North Louisiana Legal Assistance Corp., Bastrop, by Louis G. Scott, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for Dept, of Employment Security.
    Landry, Watkins & Bonin by Alfred Smith, Landry, New Iberia, for Gulf Coast Catering Co.
    Before PRICE, MARVIN and JASPER W. JONES, Jr., JJ.
   MARVIN, Judge.

In this unemployment compensation case the claimant appeals from a judgment affirming the administrative decision disqualifying him for benefits under LRS 23:1601. We reverse and render judgment for claimant.

The agency’s Notice of Claim Determination stated:

“You were discharged for insubordination to your supervisor and for continued refusal to carry out direct instructions. “It is determined that your discharge was for misconduct connected with the work.” Emphasis ours.

Claimant appealed this determination and the required hearing before an Appeals Referee was scheduled. This is the adversary hearing in the administrative process where some rules of evidence and procedure must prevail and where fairness and due process must be observed. LRS 23:1629. Banks v. Administrator of Dept. of Employment Security, 384 So.2d 485 (La.App.2d Cir. 1980); King v. Brown, 115 So.2d 405 (La.App.2d Cir. 1959). The hearing was bifurcated because the employer desired to testify in South Louisiana rather than at claimant’s domicile. Claimant received a notice to appear at each hearing. These notices were identical in stating the issue to be decided by the referee. The notice of the hearing in South Louisiana contained a statement that it was not necessary or required that claimant attend this hearing. Each “Notice to Appear for Hearing” stated the issue in these words:

“The issue(s) before the Referee are the correctness of the following:
“Alleged grounds for disqualification: “The claimant was discharged from employment because of refusal to do assigned work.
The discharge was for misconduct connected with the work.” Emphasis ours.

One Referee heard claimant testify. Another Referee heard the employer’s witnesses testify. The second Referee rendered this opinion:

“A review of the testimony in this case indicated that the claimant was discharged from his employment when he made obscene insubordinate remarks to the Personnel Manager after having been warned about his job performance. It can be concluded that his actions which resulted in his discharge do demonstrate disqualifying misconduct.” Emphasis ours.

This opinion obviously bases claimant’s disqualification solely upon claimant’s insubordination and there is no finding in the opinion that claimant’s disqualification was based upon his “refusal to do assigned work” or “to carry out direct instructions”, the issue that claimant was notified to refute or defend by the notices to appear for the hearing.

Due process and fairness were not observed. Banks, supra; King, supra. We need not discuss other issues raised in this appeal by claimant.

The judgment appealed is REVERSED at the cost of the appellee, and

IT IS HEREBY ORDERED that the claimant is not to be disqualified for unemployment compensation benefits on the grounds that he was insubordinate.


author: PRICE, Judge.

text:
    UNITED GAS PIPE LINE COMPANY, Plaintiff-Appellant, v. Arvis E. WHITMAN, Sheriff and Ex-Officio Tax Collector, Bienville Parish, Louisiana, Defendant-Appellee, two cases.
    Nos. 14284, 14285.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc. Rehearing Denied Dec. 8, 1980.

      Hargrove, Guyton, Ramey & Barlow by Michael R. Mangham and Malcolm S. Murchison, Shreveport, for plaintiff-appellant United Gas Pipe Line.
    McCollister, McCleary, Fazio, Mixon & Holliday by D. Irvin Couvillion and Neil H. Mixon, Jr., Baton Rouge, Whitten & Blake by Leon H. Whitten, Jonesboro, for defendant-appellee Arvis E. Whitman.
    Before PRICE, MARVIN and JASPER E. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, United Gas Pipe Line Company (United), appeals from a judgment of the district court which rejected its demands for the return of ad valorem taxes paid under protest to the sheriff and tax collector for Bienville Parish. The judgment also ordered United to pay defendant’s attorney fees. For the reasons discussed below we affirm the judgment rejecting the demand for recovery of the taxes and reverse the judgment ordering plaintiff to pay attorney fees.

In connection with its operation of an interstate natural gas pipe line, United owns and operates an underground storage facility for natural gas in Bienville Parish, Louisiana, known as the Bistineau Storage Project (hereinafter referred to as the Project). The Project and the pipe line system are operated pursuant to certificates of public convenience and necessity issued by the Federal Power Commission, now succeeded by the Federal Energy Regulatory Commission (FERC). The Project includes a large underground geological formation which was formerly a producing natural gas field. After most of the recoverable gas had been produced from the field, United began converting it into a storage reservoir in 1966.

There are three categories of natural gas present in the reservoir. “Native” gas is that which was not recovered when the gas field was producing. The volume of native gas present in the reservoir is a constant and is not at issue in this ease. The second category consists of gas which is injected into the reservoir to establish the base pressure required for the Project’s operation. This is referred to as “cushion” gas. A final category is the “working” gas or the gas which is stored for varying periods of time in the reservoir pending its further transportation and delivery to customers. The term “gas in storage” refers collectively to the cushion and working gas.

The Project’s operation is divided into cyclical periods or “seasons.” Working gas is purchased from producers in the field and transported via United’s pipe line to the Project where it is injected into the reservoir during the “injection” season of April through October of each calendar year. The gas is stored at the Project until the “withdrawal season” (consisting of the months of January through March and November through December) when it is withdrawn and transported to United’s customers. The protested taxes at issue were based on the assessed value of the gas in storage present in the reservoir during tax years 1977 and 1978.

In September of 1977 United received tax notices from the defendant-tax collector for ad valorem taxes based on the assessed value of both the fixed assets and the gas in storage belonging to United in Bienville Parish. United paid the taxes but protested the amount attributable to the gas in storage and gave written notice of its intention to file suit for the recovery of the protested taxes pursuant to La.R.S. 47:2110. In January of 1978 United filed suit for the recovery of the protested 1977 taxes. In September of 1978 United received tax notices from defendant for ad valorem taxes based on the value of its property in Bien-ville Parish. Again a portion of these taxes was based on the assessed value of the gas in storage at the Project. This portion of the 1978 ad valorem taxes was paid under protest and suit for recovery was filed in January of 1979. The total amount of ad valorem taxes assessed on and attributable to United’s gas stored at the Project was $294,488.45 for tax year 1977, and $412,-106.49 for tax year 1978. By joint motion of the parties, recovery of both years’ protested taxes based on the assessed value of the gas in storage is included within the scope of this litigation.

United contends that the imposition of ad valorem taxes on the gas in storage violates the commerce clause of the United States Constitution and Article VII § 21(D)(3) of the Louisiana Constitution. United further contends that Louisiana severance tax has already been paid on a portion of the gas in storage which was produced in Louisiana, and that this gas is thus exempt from further taxation under La.Const. Art. VII § 4(B).

The issues on appeal are:

(1) Whether the ad valorem taxes assessed on United’s gas in storage at the Project in Bienville Parish are prohibited by the commerce clause;
(2) Whether United’s gas in storage is exempt from ad valorem taxation under La.Const. Art. VII § 21(D)(3);
(3) Whether the gas in storage upon which Louisiana severance tax has been paid is exempt from ad valorem taxation under La.Const. Art. VII § 4(B); and
(4) Whether a taxpayer who pays ad va-lorem taxes under protest and unsuccessfully seeks recovery under La.R.S. 47:2110 is liable for attorney fees of 10% of the amount of taxes paid as provided by La.R.S. 47:1998.

COMMERCE CLAUSE

United contends that the ad valorem taxes assessed on the working gas stored at the Project are prohibited by the Federal Constitution, Article I, § 8 as this gas is in transit in interstate commerce. Approximately 97% of the working gas injected into the Project in 1976 and 100% of the working gas injected during 1977 was produced outside of Louisiana and transported by pipe line to the Project for storage pending its ultimate withdrawal and delivery to out-of-state consumers.

The commerce clause prohibits taxation by the states of property which is in transit in interstate commerce. However, by reason of a break or interruption in the interstate transit, the property may be deemed to have come to rest within a state and become subject to the power of the state to impose a non-discriminatory property tax. The crucial question to be settled in determining whether property moving in interstate commerce is subject to local taxation is that of its “continuity of transit.” Carson Petroleum Co. v. Vial, 279 U.S. 95, 101, 49 S.Ct. 292, 293, 73 L.Ed. 626, 629 (1929).

The general rule is that the interstate transit is continuous and the property is not subject to local taxation where the storage or delay is due to transportation, safety, or natural cause reasons. This immunity from local taxation is lost where the interruption is due to an intentional detention for the beneficial and business purposes and convenience of the owner. Enterprise Products Co. v. Whitman, 364 So.2d 634 (La.App. 2d Cir. 1978) writ denied 366 So.2d 916 (La.1979). “The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.” Independent Warehouses v. Scheele, 331 U.S. 70, 73, 67 S.Ct. 1062, 1065, 91 L.Ed. 1346, 1353 (1947).

The resolution of the present case requires the application of these well settled legal principles to the facts before us to determine the reason or purpose behind United’s decision to place the natural gas in storage in Bienville Parish.

Prior to the construction of the Project, United had entered into long term purchase contracts with producers of natural gas. Under the terms of these purchase agreements, United was committed to buy a certain volume of gas during the period covered by the contract. At this time (the early to mid 1960’s) the supply of natural gas exceeded the demand and United found itself in a situation where it had no buyers for all of the gas it was committed to buy and insufficient facilities in which to store the excess gas. The alternatives available to United to alleviate this “take or pay situation” were either to build a storage facility for the gas not immediately marketable or build extensive new pipe line systems to handle the excess. The latter alternative was not feasible economically so United applied to the Federal Power Commission for permission to build the Bisti-neau Storage Project. As shown by the deposition of Evans H. Lamar, United’s general superintendent of gas control, the original purpose of United in utilizing the storage reservoir was to get out of this “take or pay” situation. By utilizing the storage facilities United was able to purchase gas during periods of lowest demand and transport the gas to the Project where it was stored until the winter months of peak demand.

It is apparent that the initial purpose of United in building the Project was to respond to market conditions as they existed at the time, i. e., a purely economic decision made by United to enable it to operate its pipe line system most effectively, united contends however, that changing market conditions and increased governmental regulation now make the storage of gas in the Project mandatory and beyond its control. At all times applicable to the present ease the demand for natural gas exceeded the available supply (on á yearly average). This shortage of natural gas nationwide has required the Federal Energy Regulatory Commission to closely regulate the pricing of natural gas and to set curtailment schedules designating priority consumers during times of shortage. State conservation programs also have an effect on the availability of supply during peak demand. United' contends that all of these factors in combination require that the gas purchased by it in excess of demand during the summer months be stored so that its priority customers (as set by the curtailment program) will receive their quota of gas during the winter. United therefore contends this governmental regulation of its pipe line system makes the storage of gas in Bienville Parish an “exigency of the chosen means of transportation, ’ and therefore the interstate transit of the gas purchased outside Louisiana and stored in transit pending its ultimate delivery to customers outside Louisiana remains continuous. Thus, United argues the break or interruption in the actual movement of the gas does not remove the immunity from state property taxation provided by the commerce clause.

We are of the opinion that the storage of the working gas in Bienville Parish pending its ultimate withdrawal and delivery to out-of-state consumers is based on an economic decision of United necessitated by the character of its business. United was not required by any governmental agency to construct the Project. The curtailment program of the FERC designates priority consumers among which United must allocate available supplies of natural gas. As pointed out by the defendant-tax collector, there is no government requirement that United locate more gas if it is unable to meet the demands of these priority customers. The FERC curtailment program is not designed to regulate the movement of the gas in interstate commerce, but rather to allocate the available gas to certain priority consumers. United continues to operate the Project as it did at the inception of its operation, i. e., it purchases gas during periods of slack demand and stores it until the demand is higher and the market will absorb the gas. The storage of this gas pending winter demand is an economically expedient method of assuring United the greatest amount of sales. The commerce clause of the United States Constitution does not prohibit the taxing of this gas in storage.

LOUISIANA EXEMPTION FOR PROPERTY IN TRANSIT

United contends that La.Const. Art. VII, § 21(D)(3) provides an exemption from ad valorem taxation to the working gas in this case even if it would enjoy no such immunity under the commerce clause of the Federal Constitution. This Louisiana Constitutional provision exempts from taxation:

Goods, commodities, and personal property in public or private storage while in transit through this state which are moving in interstate commerce through or over the territory of the state or which are in public or private storage within Louisiana, having been shipped from outside Louisiana for storage in transit to a final destination outside Louisiana, whether such destination was specified when transportation began or afterward.

(This constitutional provision is effectuated by its statutory counterpart, La.R.S. 47:1951.3.) According to United’s interpretation of this section, it provides two distinct exemptions: (1) the first applicable to property in transit in interstate commerce, and (2) the second applicable to property shipped from outside Louisiana, stored in public and private facilities with a final destination outside Louisiana. United contends that this “second exemption” does not require that the property be in transit in interstate commerce. This identical argument was made by the plaintiff-taxpayer in Enterprise Products Co. v. Whitman, supra, and was rejected by this court. We adhere to our opinion in Enterprise that Art. VII, § 21(D)(3) is essentially a codification of federal law as it existed at the time of the enactment of the predecessor provision to Art. VII, § 21(D)(3), and for the reasons previously discussed, the working gas at issue here is not exempt under this Louisiana provision.

LOUISIANA SEVERANCE TAX

The gas stored in the Project upon which the ad valorem taxes at issue were levied consisted of a small percentage of gas which had been produced in Louisiana and upon which Louisiana severance tax had been paid (2.67% of the working gas during tax year 1977, and 19.75% of the cushion gas for both years at issue). The constitutional provision which authorizes the Louisiana Legislature to levy taxes on natural resources severed from the soil or water is La.Const. Art. VII, § 4(B) which reads in part as follows:

(B) Severance Tax. Taxes may be levied on natural resources severed from the soil or water, to be paid proportionately by the owners thereof at the time of severance. Natural resources may be classified for the purpose of taxation. Such taxes may be predicated upon either the quantity or value of the products at the time and place of severance. No further or additional tax or license shall be levied or imposed upon oil, gas, or sulphur leases or rights. No additional value shall be added to the assessment of land by reason of the presence of oil, gas, or sulphur therein or their production therefrom.. .. [emphasis added]

United contends that since severance tax has already been paid on this natural gas, the ad valorem taxes levied by the defendant-tax collector are in contravention of the above quoted provision. This argument is without merit. Severance taxes are excise taxes upon the privilege or right to sever natural resources from the soil and are paid by the owner of the resource at the time it is produced. See La.R.S. 47:631, et seq. The prohibition in La.Const. Art. VII, § 4(B) against additional taxes is aimed at preventing the natural resource from being taxed while in place. If natural resources in the ground could be valued and assessed for property tax purposes, the owner would pay this tax in addition to the severance tax he pays upon producing the minerals. The prohibition in Art. VII, § 4(B) is aimed at preventing such multiple taxation. However, once the natural gas upon which severance tax has been paid is purchased by a third party and placed in storage in this state, it becomes subject to ad valorem property tax the same as any other property.

ATTORNEY FEES

These suits were brought by United under La.R.S. 47:2110 attacking the legality of the ad valorem taxes on the gas in storage in Bienville Parish and seeking recovery of the taxes paid under protest. There is no provision in this statute requiring payment of attorney fees for the tax collector by the unsuccessful taxpayer. The defendant-tax collector contends he is entitled to recover his attorney fees under La.R.S. 47:1998, the statute prescribing a procedure for judicial review of assessments. Section 1998 provides that the attorney who represents the tax collector in all proceedings for the reduction of assessments and collection of taxes shall receive a compensation of 10% of the amount collected. United contends that this is not a suit challenging the correctness of an assessment nor one for the collection of taxes, but rather a proceeding brought by a taxpayer who has timely paid his taxes and now seeks by the machinery provided by law to challenge the validity of the tax. The trial court was of the opinion that a losing taxpayer in a payment under protest suit such as this must pay the attorney fees in light of the Supreme Court’s decision in South Central Bell Telephone Co. v. Traigle, 367 So.2d 1143 (La.1978), rehearing denied 1979. The Bell Telephone case was concerned with a suit for the recovery of transportation and communication utilities taxes paid under protest pursuant to La.R.S. 47:1576. The taxpayer in Bell Telephone lost the suit, and in response to its argument that attorney fees were not awarda-ble in the payment under protest suit, the Supreme Court held that in effect this was a suit for the collection of taxes. Since the monies paid under protest are held in escrow and the state is deprived of the use of this money, the Supreme Court concluded that the collection of the taxes was not complete until a final judgment denying the taxpayer’s prayer for the return of taxes paid under protest.

The plaintiff-taxpayer in the Bell Telephone case was seeking recovery of taxes which were already delinquent when paid under protest. The taxpayer had failed to timely report and remit the taxes which were due. Also at issue in that case were taxes which had become due after the initiation of the proceeding and which had been timely reported and paid under protest. The collector was only awarded as attorney fees 10% of the taxes which were already delinquent when paid under protest. As the majority opinion in Bell Telephone seemed to hold that the losing taxpayer was to be assessed 10% of all taxes paid under protest, the defendant-tax collector sought to have the amount awarded as attorney fees amended to include 10% of the taxes which had been timely reported and paid under protest during the pendency of the litigation. This application for rehearing was denied.

This court has recently faced this issue under circumstances analogous to those presented here. See Enterprise Products, supra. Enterprise dealt with ad valorem taxes timely paid under protest pursuant to La.R.S. 47:2110, the same statute at issue in the instant litigation. In response to a re-conventional demand for attorney fees pursuant to La.R.S. 47:1998, we held in Enterprise that attorney fees should not be imposed against a taxpayer where the tax being contested had been timely paid under La.R.S. 47:2110. We held that § 1998 contemplated collection of taxes and penalties not previously paid, and § 2110 contemplated litigation over taxes previously paid and on which no penalties were due.

The taxes assessed and levied on United in this suit were timely paid under protest as were the portion of taxes in the Bell Telephone case upon which attorney fees were not awarded. Justice Dennis pointed out in his concurring opinion on the denial of rehearing in Bell Telephone that there is a distinction between taxes which are delinquent when paid under protest and those which are timely paid under protest. It is reasonable for a taxpayer who delinquently pays taxes under protest to be assessed attorney fees as a penalty in the event his challenge is found invalid. On the other hand, a taxpayer who timely pays his taxes and then seeks recovery should not be assessed for the tax collector’s attorney fees simply because he is the losing party. Such a rule would place an unreasonable penalty on a taxpayer’s right to challenge the validity of a tax and is less than the complete and adequate remedy mandated by La. Const. Art. VII, § 3. Therefore we feel that the award of attorney fees in this case is not appropriate.

For the foregoing reasons, the judgment awarding defendant attorney fees of 10% of the amount of taxes paid under protest is reversed, and his demands in reconvention against United are denied; the judgment rejecting United’s demands for recovery of ad valorem taxes paid under protest for the years of 1977 and 1978 is affirmed at appellant’s cost.

      . Section 3. The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.


text:
    Gertie Lee BISON, Plaintiff-Appellee, v. Joseph LaHOOD, d/b/a LaHood’s Mobile Homes, Defendant and Third-Party Plaintiff-Appellee, Winston Industries, Inc., Third-Party Defendant-Appellant.
    No. 14286.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc. Rehearing Denied Dec. 8, 1980.

      Watson, Murchison, Crews, Arthur & Corkern, by William P. Crews, Jr., Natchi-toches, for third party defendant-appellant Winston Industries, Inc.
    Love, Rigby, Dehan, Love & McDaniel, by William G. Nader, Shreveport, for plaintiff-appellee Gertie Lee Bison.
    Colvin, Hunter, Brown, Plummer & Means, by D. Scott Brown, Mansfield, for defendant and third party plaintiff-appel-lee Joseph LaHood.
    Before PRICE, MARVIN and JASPER E. JONES, Jr., JJ.
   PRICE, Judge.

In this redhibitory action the plaintiff, Gertie Lee Bison, seeks to rescind the sale of a mobile home and to recover expenses and attorney fees. The defendants are the retailer, Joseph LaHood d/b/a LaHood’s Mobile Homes, and the manufacturer, Sherwood Homes division of Winston Industries, Inc. The district court ordered the rescission based upon its finding that defects present in the home at the time of sale rendered it useless or so imperfect that the plaintiff would not have bought it had she known of the defects. Judgment was rendered in favor of plaintiff and against both defendants in solido for $36,723.88 plus legal interest subject to a credit of $50 per month of occupancy of the mobile home by plaintiff. Sherwood was further ordered to pay plaintiff’s attorney fees in the sum of $2,000 plus interest from the date of judgment. Sherwood appeals the judgment of the district court and for the reasons hereinafter set forth we affirm.

The first specification of error made by the appellant is that the district court erred in overruling its peremptory exceptions of prescription to the plaintiff’s principal demand and LaHood’s third party demand.

Plaintiff instituted this suit against La-Hood on April 18,1978, and by answer filed December 13,1978, LaHood made a general denial and asserted a third party demand against Sherwood. Sherwood filed a peremptory exception of prescription on December 28, 1978, to LaHood’s third party demand. By supplemental petition filed January 4,1979, plaintiff amended the principal demand to add the manufacturer, Sherwood, as co-defendant. Sherwood responded by filing peremptory pleas of prescription and no right or cause of action to plaintiff’s principal demand.

Relying on C.C. Arts. 2534, 2545, and 2546, Sherwood contends that since the original and supplemental petition were filed more than one year from the date of the sale on April 14, 1977, plaintiff’s cause of action had prescribed. This contention is without merit and the trial court correctly overruled these exceptions.

The filing of suit against one soli-dary obligor interrupts the running of prescription as to another co-obligor not originally sued. C.C. Art. 2097. The manufacturer and the retail dealer are solidarily liable for return of the purchase price when a sale is rescinded for redhibitory defects. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). Once the prescriptive period has commenced to run, any repair attempts made by the seller interrupt prescription, and the purchaser has one year from the last attempted repair to bring suit. Domingue v. Whirlpool Corporation, 303 So.2d 813 (La.App.3d Cir. 1974).

Sherwood concedes that its plea of prescription to the principal demand cannot be sustained if suit was timely filed against the seller LaHood. We conclude, as did the trial judge, that suit was timely instituted against LaHood. The evidence discloses that LaHood attempted the repair of plaintiff’s mobile home within a year from the date of sale. Plaintiff telephoned LaHood on numerous occasions complaining of the problems she was experiencing. LaHood admits that he made representations to plaintiff that her problems would be corrected. At one point some time after the sale, an employee of LaHood did some repair work on the air conditioning and heating units. Plaintiff introduced into evidence receipts from her telephone bills showing calls made to LaHood during a period from April 19 to April 26, 1977. La-Hood acknowledged these calls and testified that each time plaintiff called he assured her that action would be taken. We agree with the trial court that LaHood’s repair efforts and representations that repairs would be made interrupted the prescriptive period and suit was therefore timely filed against LaHood. See Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (La.App.3d Cir. 1976).

We find no merit in Sherwood’s contention that the third party demand of La-Hood had prescribed. Sherwood’s reliance on C.C.P. Art. 1067 is misplaced. The purpose of C.C.P. Art. 1067 is to provide a period for the filing of an incidental action, otherwise prescribed, if it is filed within ninety days of the main demand. The third party demand of LaHood was one made for indemnification in the event he was found liable on the principal demand. Prescription on a demand for indemnity does not begin to run until the third party plaintiff is cast in judgment on the principal demand. Edward Levy Metals, Inc. v. New Orleans Public Belt Railroad, 243 La. 860, 148 So.2d 580 (1963). Since LaHood’s third party demand was filed prior to judgment on the principal demand, prescription on the demand for indemnity had not commenced.

Alternatively Sherwood contends plaintiff should be estopped from bringing this action because certain work done by its employees in the fall of 1977 was accepted by plaintiff in satisfaction of all her claims against Sherwood. The basis of this contention is a service worksheet of Sherwood signed by plaintiff over the printed words “signature denotes work completed to customer’s satisfaction.” This concept of accord and satisfaction requires an offer and acceptance like any other contract before it is binding on the parties. After reviewing the evidence offered, the trial court found the evidence insufficient to establish the necessary elements of an accord and satisfaction. See Pipes v. Jesse F. Heard & Sons, Inc., 258 So.2d 187 (La.App.2d Cir. 1972). We find no manifest error in this conclusion.

In its next assignment of error Sherwood contends plaintiff failed to establish the existence of defects that were serious enough to warrant a rescission of the sale, and that the defects which admittedly did exist could have been repaired for a minimal cost. There is no question that the evidence shows the following defects became apparent shortly after delivery of the mobile home to plaintiff:

(1) The rear sliding door failed to open or close properly and the lock was broken.
(2) The tub in the front bathroom leaked.
(3) The air conditioning system did not heat or cool properly.
(4) Water leaks in the roof caused stains on ceiling tile and walls in every room in the mobile home.
(5) All of the outside windows leaked.
(6) The ceiling in the rear bedroom had sagged and separated.
(7) The cross beam in the den had separated from the ceiling.
(8) One kitchen cabinet and air vent had separated from the wall.
(9) There were numerous unaligned and mismatched wall joints.
(10) Water accumulated in the hall light fixture after a rain.
(11) The carpeting on the floor adjacent to the den was buckled.
(12) The drapes had been damaged by water leaks.
(13) The exterior paneling on the home had buckled and deteriorated.
(14) The two halves of the double-wide mobile home were not evenly joined together.
(15) The front door would not completely close.

The appearance of these defects shortly after plaintiff occupied the mobile home compels the conclusion that they resulted from poor workmanship and materials and were in existence on the date of the sale.

Sherwood’s contention that rescission is not an appropriate remedy because the defects were easily repairable at minimal cost is not supported by our jurisprudence. We have noted previously that:

... To prevail in an action for redhibition a purchaser need not prove that the alleged defect is difficult to repair. The purchaser need only prove defects which render the thing sold either absolutely useless or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.... Ticheli v. Silmon, 304 So.2d 792, 797 (La.App.2d Cir. 1974).

We find no manifest error in the conclusion of the trial court that plaintiff was entitled to have the sale rescinded.

Lastly, Sherwood contends that the trial judge erred in refusing to grant it an offset of $200 per month based on the use value of the mobile home to plaintiff. Sherwood presented evidence in the form of testimony showing the rental value of comparable mobile homes in the area. The trial judge considered this testimony but found a rental credit of $50 per month was appropriate in this instance because of the many defects present in the home. The fair rental value was definitely affected by the defective conditions, and the reduction allowed by the trial judge was well within his discretion. See Weaver v. Fleetwood Homes of Mississippi, Inc., supra.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.


text:
    SUCCESSION of Horace Eugene McENTYRE.
    No. 14287.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Reeves & Owens by Jack F. Owens, Jr., Harrisonburg, for Marie Davis Malcolm, proponent-appellant.

      S. E. Lee, Jr., Winnsboro, for Mrs. Ollie Polk, intervenor-appellee.
    Donnie L. Ellerman, Winnsboro, for Mrs. Donnice Ezell, intervenor-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, Jr., JJ.
   MARVIN, Judge.

More than 10 years after the death of this intestate decedent in 1967, plaintiff sought possession of his estate, claiming that she is his surviving widow by virtue of a 1933 marriage. Others, claiming consanguinity to decedent, opposed plaintiff’s claims. The trial court found that although plaintiff and decedent had lived together for about three years, she had not proved that a marriage ceremony occurred or that their living together was as husband and wife. From the rejection of her demands, plaintiff appeals. We affirm.

In support of her testimony, plaintiff introduced the 1933 license authorizing the marriage, a certificate showing that a child was born to plaintiff about eight months after the date of the license, and the testimony of her 80-year-old female cousin. Plaintiff’s child died in infancy. The birth certificate shows decedent and plaintiff as the lawfully married parents of the child, the length of pregnancy as nine months, and the child as full term.

Where the evidence will support a finding that marriage records have been lost or destroyed, even circumstantial evidence may prove the existence of a marriage. Brown v. Texas & P. Ry. Co., 18 La.App. 656, 138 So. 221 (2d Cir. 1931). This evidence must be substantial and convincing and must come from reliable witnesses. Johnson v. Hogan & Winchester Transfer Co. et al., 171 So. 467 (La.App. 1st Cir. 1936).

The trial court noted many discrepancies and contradictions in the testimony of plaintiff and her witness and resolved the factual and credibility issues against plaintiff. The trial court was not clearly wrong in its determination. The total circumstances strongly indicate that plaintiff and decedent were not wed in a ceremony and did not live together as man and wife.

In answer to interrogatories, plaintiff listed only three persons, all of whom were deceased, as witnessing the alleged ceremony. About a week later by amended answer she listed her cousin as being present. During the later trial plaintiff and her cousin stated that many people were present. Plaintiff said a niece of the decedent, yet living, was present. Plaintiff insisted that the marriage ceremony, performed by Rev. Taylor, occurred on April 8, 1933, the date of the marriage license.

Plaintiff’s cousin said that plaintiff’s sister, yet living, was present at the ceremony and that the marriage was performed during the fall of the year at crop-gathering time. Neither the decedent’s niece nor the plaintiff’s sister were called as witnesses. Plaintiff’s cousin did not recall anything out of the ordinary about Rev. Taylor, except that he was an older man. Other testimony showed Rev. Taylor to have been a grossly deformed hunchback of distinctive appearance. Other testimony, admitted without objection, was to the effect that the neighbors and family who knew plaintiff and decedent did not consider them to have been husband and wife or to have been married in a ceremony.

Plaintiff contended that the certificate of the marriage was destroyed when the home in which she and decedent first lived was consumed by fire. Contrary testimony established that no home in which decedent and plaintiff lived had ever been on fire. Plaintiff said the marriage certificate was signed by her mother, her brother and the preacher’s wife, all since deceased. Plaintiff’s cousin insisted that she signed the marriage certificate as a witness.

Plaintiff first married a man named Doughty who died before 1933. In 1941, after plaintiff left the decedent, she married a man named Malcolm. Her 1941 marriage record shows Doughty as the name of her former husband and shows her name to have been listed as Marie Davis Doughty. Plaintiff admits that she went by the name of Doughty after she left decedent and that the 1941 marriage record bears her signature, Marie Davis Doughty. Plaintiff obtained a divorce from Malcolm about 1967 and has continued to go by that name. Plaintiff never sought a divorce from the decedent, yet she legally married Malcolm in 1941 and had three children by him.

The trial court stated that the evidence presented by plaintiff and her cousin was “not convincing” and that the cousin’s testimony probably was the result of the “power of suggestion”. The trial court elected to disregard and to not accept plaintiff’s testimony. We find no error. See Succession of Dotson et ux., 202 La. 77, 11 So.2d 488 (1942).

At appellant’s cost, judgment is

AFFIRMED.


author: HALL, Judge.

text:
    Lizzie B. JOHNSON, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION, Defendant-Appellant.
    No. 14289.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Michael C. Barron, Special Counsel, Legal Section, Baton Rouge, for defendant-appellant.
    Fárrar, Perry & Jefferson by Stephen A. Jefferson, Monroe, for plaintiff-appellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   HALL, Judge.

In January 1980 plaintiff filed a petition for a restricted driver’s license under LSA-R.S. 32:415.1, alleging that her license had been “revoked” and alleging economic hardship. The state answered, alleging that plaintiff had been convicted of DWI offenses in 1973, 1978, and 1979, and that her license had been previously suspended for a second offense DWI conviction. After trial the district court found that plaintiff had accumulated four DWI convictions with the first in 1973 and the last in 1979. The court found that plaintiff’s license had been suspended as the result of a DWI conviction more than five years prior to the date of the hearing in the present case. The court held that since DWI offenses more than five years prior to subsequent offenses are not considered on a person’s driving record, they should not be considered as a bar to issuance of a restricted license under a subsequent suspension. The court ordered the issuance of a restricted license and the Department appealed.

We affirm; not for the reasons given by the district court, but because the record does not establish that plaintiff’s license had previously been revoked or suspended under LSA-R.S. 32:414(B).

LSA-R.S. 32:415.1 provides in pertinent part:

“A. (1) Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.. .. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family.. .. ”

A person is entitled to petition for a restricted license when his license is suspended or revoked for the first time only under LSA-R.S. 32:414(B), (C), (D), (E), and LSA-R.S. 32:415. If a person’s license has been previously suspended or revoked under those statutes, the person is not entitled to petition for a restricted license. Bradley v. State, Dept. of Public Safety, 372 So.2d 1259 (La.App. 3d Cir. 1979); Perry v. State, Department of Public Safety, Driver’s License Division, 353 So.2d 318 (La.App. 4th Cir. 1977), writ denied 354 So.2d 1385 (La.1978). In this case, the Department contends that plaintiff’s license was previously suspended or revoked under LSA-R.S. 32:414(B), which provides for a mandatory one-year revocation by the department for a second or subsequent offense of DWI.

The Department’s computer printout of the plaintiff’s driving offense record shows only two convictions for DWI. The printout shows that plaintiff was convicted of DWI on September 22, 1978 and that her license was suspended for a period of one year as a result of this conviction. The record does not show when the suspension became effective. The printout also shows that plaintiff was convicted of DWI on September 19, 1979, but neither the printout nor any other evidence in the record shows that the department has taken any steps toward revocation of plaintiff’s license following that conviction. Plaintiff’s petition for a restricted license is, therefore, directed at the revocation resulting from the 1978 conviction.

The evidence does not support the trial court’s findings of fact. As far as the record and evidence shows, the revocation following the 1978 conviction was plaintiff’s first suspension or revocation under LSA-R.S. 32:414(B). The evidence does not establish that plaintiff’s license had ever been previously suspended or revoked under that statute. The department offered no documentary evidence of such a suspension or revocation. Plaintiff, an uneducated deomestic worker, admitted on cross-examination that she was previously convicted of DWI, but the year of conviction was not established. She also admitted her license was previously suspended for six months. The evidence does not connect that suspension with a previous DWI conviction. Any suspension or revocation for DWI would necessarily have been for 60 days under LSA-R.S. 32:414(A) or one year under LSA-R.S. 32:414(B), not for six months.

Since the revocation following the 1978 conviction was plaintiff’s first suspension or revocation under LSA-R.S. 32:414(B), the trial court had the authority and discretion under LSA-R.S. 32:415.1 to order the issuance of a restricted license.

Although the record shows a subsequent conviction for DWI in 1979, and LSA-R.S. 32:414(B)(2) provides for a mandatory revocation by the department for a second or subsequent DWI offense, the record does not show that the department has taken any steps toward revocation of plaintiff’s license following that conviction. If plaintiff’s license is again revoked under the 1979 conviction, she will not be entitled to a restricted license because of the prior suspension or revocation under the 1978 conviction. Upon revocation under the 1979 conviction, the restricted license issued pursuant to the court’s order in this case under the 1978 conviction and resulting suspension would be revoked and no longer effective. The fact that these results will ensue in the event of a revocation by the department under the 1979 conviction, which has not yet taken place, does not preclude the court in the instant proceeding from granting a restricted license under the suspension for the 1978 conviction, which is the only suspension or revocation in effect at this time.

The evidence supports the trial court’s determination that the loss of her driver’s license would work an economic hardship on the plaintiff and her family. Had the trial court chosen to do so, it could have, as a matter of discretion, refused to order the issuance of a restricted license on the basis of the plaintiff’s subsequent DWI conviction. Since the statute is couched in permissive rather than mandatory terms, the district court is not required to grant a restricted license even if the plaintiff proves that the lack of a license would deprive the person or his family of the necessities of life. Ansley v. State, Dept. of Public Safety, 356 So.2d 518 (La.App. 1st Cir. 1977). Here, the district court exercised its discretion in favor of the plaintiff. We find there was no abuse of the trial court’s discretion in granting the restricted license.

For the reasons assigned, the judgment of the district court ordering the department to issue a restricted license to the plaintiff is affirmed. Such court costs as may be assessed to a state agency are assessed to the defendant-appellant.

Affirmed.

      . LSA-R.S. 14:98, dealing with DWI offenses and penalties therefor, provides that any DWI offense committed more than five years prior to the commission of the DWI offense for which the defendant is being tried shall not be considered in the assessment of penalties under the statute. LSA-R.S. 32:414 B(2), dealing with revocation of license for second and subsequent offenses, provides that any DWI offense committed more than five years prior to the commission of a subsequent DWI offense shall not be considered in determining the number of such offenses which the person has committed.


text:
    Billie June ARRENDELL, Plaintiff-Appellant, v. Donald E. ARRENDELL, Defendant-Appellee.
    No. 14291.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      James B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Mrs. Arrendell appeals from a judgment of the district court awarding her alimony pendente lite of $750 per month, specifying that the district court erred in taking into account her earning capacity when she was not employed and had no earnings. We agree with the appellant and amend the judgment to increase the award to $900 per month.

The evidence is that Mr. Arrendell has a net income of $1,750 per month from his employment. Mrs. Arrendell is not employed and has no income. Mr. Arrendell’s expenses are $950 per month and Mrs. Ar-rendell’s listed expenses are $1,450 per month. Mrs. Arrendell had several years of college, made good grades, but did not graduate. The only employment she had since the parties married in 1954 was occasional temporary secretarial or clerical work making near minimum wages, and she had not worked at all for about three years prior to the parties’ separation.

In perceptive oral reasons for judgment given from the bench at the conclusion of the trial of the alimony rule, the trial court stated:

“The way the law used to work, the wife was entitled to be supported in the style which she has grown accustomed. I think if there is plenty of money, that’s still the law, but I think if money won’t stretch, I don’t think the wife is entitled during the period of separation to live better than the husband. Stated another way, I believe the law used to be the wife, during the period of separation, was entitled to live better than the husband. I don’t think that is, will be, or should be the law in the future. I think what you try to do when you have a decent amount of money but not plenty of money, as I would characterize this case, is to try to equalize the circumstances. I think you also have to consider employability. I think Mrs. Arrendell has the ability to net about $250.00 a month under current circumstances and current situations. And if I award her $750.00, that will put them both in the vicinity of a thousand dollars a month which, considering the way they’ve both been living, is bare bones for both of them and should be unsatisfactory to both, which is one of the definitions of a decent alimony award.. . .
“I would also like to state for the benefit of the court of appeal if they disagree with me on where the law is or ought to be or will be that I believe, I would have awarded a year and a half or so ago at least $950.00 or at least $900.00 rather, perhaps $950.00, on this same case.”

By Act 72 of 1979, the Louisiana legislature amended both LSA-C.C. Art. 148, dealing with alimony pendente lite, and LSA-C.C. Art. 160, dealing with alimony after divorce. Both articles were amended to allow alimony to either spouse, not just the wife. Additionally, the amendment to Article 160 effects a significant change in the law by mandating the trial court to consider the earning capacity of the spouses, and specifically the earning capability of the claimant spouse, in determining entitlement to and the amount of post-divorce alimony. The amendment thus constitutes a legislative overruling of the holding in Ward v. Ward, 339 So.2d 839 (La.1976) and Favrot v. Barnes, 339 So.2d 843 (La.1976) that the claimant wife’s earning capacity could not be considered in determining her entitlement to or the amount of alimony after divorce.

The amendment to Article 148, on the other hand, made no changes in the criteria for determining entitlement to or amount of alimony pendente lite. Prior to amendment the article read:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

Article 148 now reads:

“If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Thus, the only changes to Article 148 were to allow the trial court to award alimony pendente lite to either spouse, not just the wife, and to change the word “shall” to “may”.

The fact that the legislature did not change the criteria for determining entitlement (insufficient income for maintenance) or amount (a sum for support proportioned to the needs of the claimant spouse and the means of the other spouse) of alimony pen-dente lite while at the same time, in the same act, it changed substantially the criteria for determining alimony after divorce, including a specific mandate to consider earning capacity or capability of the claimant spouse, strongly indicates that the legislature did not intend the changes made in Article 160 to be applicable to Article 148. There was no legislative overruling of the cases interpreting the significant terms of LSA-C.C. Art. 148. Therefore, the criteria of Article 148, as interpreted in prior cases, remain unchanged except that they are now to be applied in a gender-neutral manner.

In cases decided prior to the 1979 amendment to Article 148, the term “maintenance” was interpreted to mean the style or manner of living enjoyed by the spouses while they lived together. Williams v. Williams, 331 So.2d 438 (La.1976); Abrams v. Rosenthal, 96 So. 32, 153 La. 459 (1923); Johnson v. Johnson, 317 So.2d 691 (La.App. 2d Cir. 1975); Cabral v. Cabral, 245 So.2d 718 (La.App. 4th Cir. 1971). Cases held that, in determining whether the claimant spouse has sufficient income for maintenance, the courts should look to income produced from the spouse’s capital assets and to the actual earnings or salary of the spouse. Consistently, the courts rejected the argument that the claimant spouse’s earning capacity should be a factor in determining whether the spouse had sufficient income for maintenance. Bilello v. Bilello, 121 So.2d 728, 240 La. 158 (La.1960); Abrams v. Rosenthal, supra; Johnson v. Johnson, supra; Cabral v. Cabral, supra; McMath v. Masters, 198 So.2d 734 (La.App. 3d Cir. 1967); Shapiro v. Shapiro, 141 So.2d 448 (La.App. 4th Cir. 1962).

This court recently considered the issue of earning capacity as a factor in determining alimony pendente lite after the amendment to Article 148. In Galbraith v. Galbraith, 382 So.2d 1042 (La.App. 2d Cir. 1980), we held that neither the brevity of the marriage nor the claimant spouse’s capacity to earn a gainful wage are factors to be considered in setting alimony pendente lite. The considerations are legislatively established in Article 148. In Galbraith we found that the husband had the means and the claimant wife, who was unemployed and without sufficient income, had the need. Alimony pendente lite was awarded notwithstanding the capacity of the claimant spouse, there the wife, to earn.

The purpose of alimony pendente lite is to temporarily, pending litigation, provide for the spouse who does not have sufficient income for his or her maintenance. Alimony pendente lite is ordinarily determined initially by summary proceedings within a few days after litigation is commenced. The award is usually effective from the date suit is filed. In a sense, it is designed to preserve and continue the status quo insofar as maintenance and support are concerned. It relates to facts as they have existed during the time the parties were living together and as they actually exist at the time the litigation commences, not to future possibilities and capabilities. Where one spouse is employed and has income and the other is not employed and has no income, the employed spouse is required to continue to provide for the maintenance of the unemployed spouse in this temporary situation. Where the spouses themselves have, during the marriage, assigned the role of wage earner to one and the role of homemaker to the other, fairness and practicality dictate that the wage earner spouse continue that role during the temporary period of litigation and adjustment. If both spouses are employed, then the income of both is to be taken into consideration. If neither is employed, then perhaps respective earning capabilities should be considered. Earning capability might be considered where a spouse has been regularly employed during the marriage but happens not to be employed at the very moment of trial of the alimony rule, and has the capability of securing employment immediately.

We agree with the trial court’s statement that under present law the wife is not entitled to live better than the husband where the money available will not allow them both to continue to live in the style to which they were accustomed while living together. The same would be true where the husband is the claimant spouse. This is entirely consistent with the criteria of the Code article, which allows a sum proportioned to the needs of the claimant spouse and the means of the other spouse.

We are of the opinion, however, that the trial court erred in this case by reducing the amount which it otherwise would have awarded the wife according to her needs and the husband’s means by the amount which the court believed the wife was capable of earning. Here, the wife had no income at the time of trial of the rule, had earned no income from employment for at least three years prior to the trial, and had never been regularly employed during the 25 years the parties had been married. In determining the sum to which the claimant spouse without sufficient income was entitled, as of the time the rule was tried, during the litigation period, the capability of the claimant spouse to obtain employment producing some income at a future time was not an appropriate consideration.

In Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir. 1980), the court reached a different result than we reach here, but under different circumstances. There the alimony pen-dente lite judgment appealed from was rendered prior to the amendments to Articles 148 and 160. The First Circuit found Article 148 prior to its amendment to be unconstitutional and, therefore, that article could not form the basis for an award of alimony pendente lite. To fill the gap in the law created by this holding, the court looked to LSA-C.C. Art. 119 which provides that the husband and wife owe to each other mutually, fidelity, support, and assistance. The court held that the changes in social circumstances which compelled holding Article 148 unconstitutional also compelled an interpretation of Article 119 different from interpretations previously given Article 148. The court held that where no impediment exists to the employment of the wife she should not be entitled to alimony pendente lite unless it is made to appear that she is unable to find employment with which to support herself. The evidence in that case was that the parties had been married less than five months and that the wife had worked both before and during the marriage, although she was unemployed at the time of trial.

The Smith case is distinguishable and not controlling, both because of its facts (the wife had been working prior to the separation) and because it was decided under Article 119 prior to the amendments to Articles 148 and 160. To the extent, however, that the Smith case may be considered as authority for the proposition that, as a general rule not limited to the facts of that case, a wife must show she is unable to find employment as a precedent to obtaining alimony pendente lite under amended Article 148, wé disagree with the proposition.

For the reasons set forth above, we will amend the judgment to award the appellant alimony pendente lite of $900 per month, the low-side figure mentioned by the trial court as the amount which he would have awarded without consideration of the wife’s earning capacity.

The judgment is amended to increase the amount of the award of alimony pendente lite from $750 per month to $900 per month. As amended, the judgment is affirmed. Costs of the appeal are assessed to the husband, appellee.

Amended, and as amended, affirmed.

      . LSA-C.C. Art. 160 (as amended):
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      “In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      “This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”