author: PONDER, Judge. LOTTINGER, Judge,

text:
    Mrs. Billie C. HARRIS, Individually and as Tutrix of Jeffrey Todd Harris v. GULF STATES UTILITIES COMPANY and D’Orsay D. Bryant.
    No. 13615.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 6, 1981.

      Eric A. Kracht, Baton Rouge, for Mrs. Billie C. Harris, Ind., and as tutrix of Jeffrey Todd Harris.
    W. Luther Wilson, Baton Rouge, for Gulf States Utilities Co.
    Robert C. Williams, Baton Rouge, for D’Orsay D. Bryant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant, Gulf States Utilities Company, appealed from the judgment awarding damages to the plaintiffs for injuries sustained by Todd Harris, the son of the other plaintiff. Plaintiffs appealed the findings of no liability by Bryant, the other defendant. The issues involved are:

1. The liability of defendants GSU and Bryant.
2. The contributory negligence of plaintiff.
3. Quantum.

We affirm.

A half completed home had been abandoned prior to its purchase by defendant Bryant. During construction, GSU had installed a pad-mounted (ground level) transformer box and energized it through an underground cable from a power source several hundred feet away. No electricity was ever supplied from the transformer box to the house. Temporary electrical service for construction was supplied from a separate source. When construction was abandoned, GSU de-energized the temporary electrical service but not the permanent transformer box.

After Bryant’s purchase, repeated acts of theft and vandalism reduced the house to a shambles. Bryant gave up any hopes of completing construction; he had not visited the property for several years prior to the accident. Although Bryant attempted to block access to the property with fences, gates and “no trespassing” signs, plaintiff and other young people regularly visited the property. Plaintiff and two witnesses testified in all the years they visited the property they were never asked to leave. Plaintiff said the only time he saw an adult on the property, he was given permission to stay.

There was some testimony that the transformer box had stood with the doors open for about four years prior to the accident. Weeds and vines surrounded the box; dead leaves filled the bottom.

On the day of the accident, plaintiff and a friend were walking through the property. On approaching the box, plaintiff reached out and touched the energized breaker and received serious shocks and burns.

Plaintiff argues that both defendants are liable under a theory of negligence or in the alternative under a theory of strict liability. Plaintiff further contends the quantum of damages awarded by the trial court is insufficient.

Defendant GSU argues that it did not violate a duty to plaintiff, that it was not negligent, and that plaintiff was at fault in causing his own injury. Defendant GSU further argues the amount of the award is not supported by the evidence.

Defendant Bryant argues that he is not liable under either a theory of negligence or a theory of strict liability.

The trial court found GSU breached the duty of care owed to plaintiff by failing to inspect its equipment, so allowing the dangerous condition to continue to exist; that defendant Bryant acted reasonably under the circumstances in that he had no actual or constructive knowledge that the transformer was energized; and that plaintiff was guilty of no contributory negligence. The judgment was for $10,723.86 for medical expenses and $150,000.00 for pain, suffering, scarring, permanent disability and decreased earning ability.

The Issues

1. The liability of GSU

GSU argues that it is a reasonably safe practice to leave energized an out-of-service transformer box if it is securely locked. We agree. However, for at least four years prior to the accident in 1977, the box stood open, exposing the public to 7,620 volts of electricity. This was a breach of duty. Because we find defendant GSU negligent, we find it unnecessary to address the question of strict liability.

2. The liability of Bryant.

The duty of an owner of land is to act reasonably under the circumstances, taking into account the expected presence and likelihood of injury to persons on the land. Shelton v. Aetna, 334 So.2d 406 (La.1976). We believe that defendant Bryant acted reasonably. He took various measures to keep people off of his property. He was aware of the presence of the transformer box but not of its dangerous condition. Bryant neither requested nor received electrical service. The cable which led from the power source to the transformer box was underground. Under these circumstances we affirm the trial court’s finding that Bryant was not negligent.

Plaintiff argues that defendant Bryant is strictly liable under Civil Code Articles 2317 or 2322.

Article 2317 provides for the liability of an owner or guardian of a thing in his custody or control for damages caused through its defect. Loescher v. Parr, 324 So.2d 441 (La.1975). We believe the transformer box owned and maintained by GSU was not sufficiently in the custody or control of defendant Bryant as to impose liability.

Article 2322 imposes liability upon the owner of a “building” to persons injured through its “ruin” whether due to a vice in its original construction or through his neglect to repair it. The jurisprudence has included “necessary appurtenances” to structures and movables made immovable by attachment, within the term “building” for purposes of the building-owner’s liability under Article 2322. Unity of ownership of the building and its appurtenances is not required for imposition of liability, Olsen v. Shell Oil Company, 365 So.2d 1285 (La. 1979). However, we believe the duty of care imposed by Article 2322 should not be extended to include liability for the “ruin” of a pad-mounted transformer box never connected to the main structure in any fashion.

3. The Contributory Negligence of Plaintiff

Defendants maintain that plaintiff’s recovery should be barred by his own contributory negligence in reaching into the transformer box and grabbing the energized breaker. They rely on Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) and Kent v. Gulf States Utilities Company, La.App. First Circuit, No. 13,205 (May 5,1980).

In Cates, a 16 year old boy was held contributorily negligent for climbing a thirty-foot utility pole to cut and remove wire. Fault of the victim was also a bar to plaintiff’s recovery in Kent. Plaintiff, an eighteen-year old, was engaged in raking fresh concrete as part of a road construction project. The metal rake he was using was attached to a thirty foot aluminum pole. Plaintiff ignored repeated warnings of an overhead high voltage line. He deliberately rejected alternative methods of using the metal rake that would have eliminated the need to raise it.

Contributory negligence must be determined in the light of the circumstances of each case. The abandoned house and the overgrown property on which it was located had been used as an area of recreation for at least four years. The young people had played around the open transformer box with no apprehension of its being energized. There was no electricity in the abandoned house and no wires connected the box to the house. An expert in the field of electrical engineering testified he would have assumed that the transformer box was deenergized; we cannot find fault with the same assumption by a seventeen-year old boy.

We affirm the trial court’s holding that Todd Harris was free from negligence.

4. Quantum of Damages

Plaintiff suffered third and fourth degree burns to his right hand and toes. He underwent surgery four times for skin grafts, partial amputation of two toes, and debridement of necrotic tissue and muscle. He lost most of the muscle in the web between the thumb and index finger of his right hand. The hand is disfigured and claw-like in appearance. He suffered intense pain during his twenty-one day hospital stay. Although plaintiff has made a remarkable recovery his toes and hand still remain sensitive. His hand lacks the strength and agility necessary to use small hand tools. An orthopedic surgeon ascribed a twenty-eight per cent permanent partial disability to plaintiff’s right hand with sensory and muscle loss in the thumb and finger, a 16% partial disability to his right foot and a 4% partial disability to his left foot. Plaintiff could adapt to many functions and had done well considering the serious nature of his injuries.

We feel the trial court’s award of $10,-723.86 for medical expenses and $150,000.00 for pain, suffering, disfigurement, permanent disability and lost earning ability, while low, is within the discretion of the trial court and therefore affirm.

For the above reasons the judgment of the trial court is affirmed. Gulf States Utilities Company is cast with the costs.

AFFIRMED.

LOTTINGER, J., dissents and assigns written reasons.

LOTTINGER, Judge,

dissenting.

I respectfully dissent.

My disagreement is limited to the majority’s failure to find that Jeffrey Todd Harris was contributorily negligent. It does not follow that a seventeen year old boy would or should assume a transformer box is de-energized simply because an expert in the field of electrical engineering would make the same assumption. The test is not what an expert would assume, but what a reasonable 17-year-old under similar circumstances would do. Interestingly, the expert stated that he would not have touched anything inside the transformer box.

The issue is simple. Was it reasonable for a seventeen year old boy, who studied electrical welding in school and who was told that the box was a transformer box, to grab hold of a component part inside the box? I believe it was highly unreasonable.

Therefore, I respectfully dissent.

      .The United States Dept, of Commerce, Safety Rules for the Installation and Maintenance of Electric Supply and Communication. Lines, Sixth Edition, 1961, Sections 211, 213 and 214 A.
      “211. INSTALLATION AND MAINTENANCE.
      All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.”
      “213. INSPECTION AND TESTS OF LINES AND EQUIPMENT.
      ******
      B. When Out of Service.
      1. LINES INFREQUENTLY USED.
      Supply lines and equipment infrequently used shall be inspected to see that they are in safe condition for service.
      2. LINES TEMPORARILY OUT OF SERVICE.
      Lines temporarily out of service shall be maintained in such condition that a hazard will not be created.
      3.LINES PERMANENTLY ABANDONED.
      Lines permanently abandoned shall be removed or maintained in a safe condition.
      Note: Overhead service drops to consumers are often disconnected without removal when the service is discontinued. This is considered good practice when it is undesirable to remove the service drop entirely.”
      “214. ISOLATION AND GUARDING.
      A. Current-carrying Parts.
      To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.”


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Paul WALDROP v. VISTRON CORPORATION.
    No. 13618.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Charles R. Moore and Edward J. Walters, Jr., Moore & Walters, Baton Rouge, for plaintiff s-appellants Paul Waldrop and Windolyn Waldrop.
    Harry McCall, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee E. I. Du Pont de Nemours & Co.
    R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-appellee Uniroyal, Inc.
    Allen R. Fontenot, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for defendant-appellee Monsanto Co.
    Roger M. Fritchie, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for defendant-appellee American Cyanamid Co.
    David W. Robinson, Watson Blanche, Wilson & Posner, Baton Rouge, for defendants-appellees Vistron Corporation and Standard Oil Company of Ohio.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Paul Waldrop and his wife, Windolyn Waldrop, brought suit against Vistron Corporation, American Cyanamid Company, E. I. Du Pont de Nemours and Company, Monsanto Company, Continental Insurance Company, The Standard Oil Company (of Ohio), Inc., Uniroyal, Inc., and eight individual defendants.

Plaintiffs alleged that Mr. Waldrop worked at Uniroyal’s Baton Rouge plant from 1954 to June 20, 1978, and that while employed, he was continuously exposed to acrylonitrile, a known carcinogen. Plaintiffs, by amended petition, claimed that Uniroyal

“intentionally, knowingly and with willful, wanton and reckless disregard of plaintiff’s safety,”

caused plaintiff to be exposed to unsafe levels of acrylonitrile. Due to this exposure, plaintiff allegedly contracted cancer of the colon, for which he underwent surgery and which has necessitated repeated hospitalization.

Paul Waldrop sought damages as follows:

a) Personal injury, including but not limited to cancer of the colon $ 3,000,000
b) Loss of life’s normal pleasures and shortening of his future life expectancy 1,250,000
c) Loss of wages and impairment of future earning capacity, past and future 3,000,000
d) Pain and suffering, past and future 1,500,000
e) Severe anxiety and mental anguish, past and future, including anxiety over the possibility of recurring cancer; fear of loss of life 1,500,000
f) Medical, hospital, doctor, pharmaceutical expenses, past, present and future, including travel expenses for medical care 251,000
$ 10,501,000

Windolyn Waldrop itemized her damages as follows:

a) Reasonable value of her services in caring for plaintiff $ 200,000
b) Loss of the enjoyment of the pleasures of a normal productive married life 500,000
c) Mental anxiety and distress over her husband’s illness and fear of loss of her husband’s life 500,000
d) Pecuniary loss incurred as a result of being unable to continue in her business ventures because of being required to care for her husband 500,000
$ 1,700,000

Uniroyal filed a peremptory exception of no cause of action on the ground that Mr. Waldrop’s sole remedy, vis-á-vis Uniroyal, was workmen’s compensation. The exception was maintained but plaintiffs were given an opportunity to file a fifth amending petition.

Plaintiffs’ fifth amending petition named the Chemical Manufacturers Association, CM A, as an additional defendant. Uniroyal, Inc., is a member of the association and was sued as such.

To plaintiffs’ amended petition, Uniroyal filed another exception of no cause of action. This exception was also maintained and the suit as to Uniroyal was dismissed with prejudice at plaintiffs’ cost. Plaintiffs appeal.

To consolidate all issues in this matter as to Uniroyal, plaintiffs and Uniroyal have stipulated that the appeal will include appeals from both judgments maintaining Uniroyal’s exceptions of no cause of action.

In addition to dismissing Mr. Waldrop’s claims against Uniroyal, the trial court converted exceptions of no right of action filed on behalf of Monsanto, Du Pont and Uniroyal into a motion to strike and granted the motion to strike claims a), b) and c) of Windolyn Waldrop as to those defendants. Plaintiffs also appeal this decision.

Appellants urge that workmen’s compensation is not plaintiffs’ sole remedy against Uniroyal because Uniroyal intentionally harmed Waldrop with acrylonitrile by knowing of its dangerous quality, yet exposing him to it anyway. On that ground, appellants claim, and we reject, a cause of action in tort.

Even if Uniroyal knew of acrylonitrile’s dangerous propensities and even if Uniroyal failed to warn Waldrop of same, and even if Uniroyal caused Waldrop to, unknowingly, be exposed to the dangers of acrylonitrile, such conduct does not rise to the level of an intentional tort.

To constitute an intentional tort, the defendant must 1) have entertained a desire to bring about the result which followed and 2) have believed that the result was substantially certain to follow. Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1st Cir. 1980), writ refused 386 So.2d 359 (La.1980); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4th Cir. 1979); Guidry v. Aetna Casualty and Surety Company, 359 So.2d 637 (La.App. 1st Cir. 1978), writ denied 362 So.2d 578 (La.1978); Monk v. Viellon, 312 So.2d 377 (La.App. 3rd Cir. 1975).

Nothing in any of plaintiffs’ petitions even begins to show that Uniroyal desired that plaintiff should contract cancer. Nor does the record provide a basis for finding that Uniroyal was substantially certain that Waldrop would, in fact, get cancer.

This case is remarkably similar to Courtney v. BASF Wyandotte Corporation, supra, where we held that

“the conditions of an employer’s workplace, so long as they do not rise to the level of an intentional tort, are part of the employee’s course of employment. As such, an injured employee’s sole remedy is Workmen’s Compensation.”

This court will not redefine “intentional acts” so as to broaden its meaning. Nor will we remove the requirement of malice-that the tortfeasors actively have entertained a desire to bring about the result that followed. To do so would be to circumvent the legislative will and to erode jurisprudentially the immunity from tort currently granted employers under Louisiana’s workmen’s compensation statute.

That the courts of other states may choose to act legislatively and erode employers’ immunity from tort is clear. Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W.Va.1978); Douglas v. E. & J. Gallo Winery, 69 Cal.App.3d 103, 137 Cal.Rptr. 797 (1977). We decline to follow and leave statutory change where it properly belongs, at the legislature.

Uniroyal as plaintiff’s employer is immune from suit in tort. However, as a member of CMA, a separately named defendant responsible for its own acts and not immune from tort, Uniroyal is not immune and may be held responsible for its share of whatever damages for which CMA may be cast.

Mrs. Waldrop’s claims for services in caring for her cancer-ridden husband, for loss of the pleasures of a normal married life and for mental anguish were stricken by the trial court.

It has long been held in Louisiana that one may not recover for mental suffering resulting from personal injuries, short of death, suffered by another. Black v. Carrollton Railroad Co., 10 La.Ann. 33 (1855); Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458 (1907); Robertson v. Aetna Casualty and Surety Company, 232 So.2d 829 (La.App. 4th Cir. 1970); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1st Cir. 1975), writ denied 318 So.2d 59 (La.1975); Bourque v. American Mutual Liability Insurance Company, 345 So.2d 237 (La.App. 3rd Cir. 1977); Branch v. Aetna Casualty & Surety Company, 370 So.2d 1270 (La.App. 3rd Cir. 1979), writ denied 374 So.2d 660 (La.1979). Branch held that even in light of Art. 1, Section 22 of the Louisiana Constitution of 1974,

“the legislature and courts of this state have never at any time recognized the principle that every loss of a personal relationship, resulting from a delict, is compensable. The mutually exclusive categories of survivors set forth in the third paragraph of Article 2315 have been applied in cases too numerous to mention, excluding many who would otherwise have had valid claims. We do not feel that this constitutional provision can be construed so broadly as to defeat the sound policy implemented by those legislatively imposed limitations.” (workmen’s compensation limitations)

The inconsistencies and basic unfairness of this long line of jurisprudence were most recently examined by our brethren of the Fourth Circuit in Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir. 1979). In scholarly fashion, Judge Gulotta reviewed the law and its faults and pointed up the need for change.

With all due respect for precedent, we believe the line of cases beginning with Black v. Carrollton Railroad Co. and ending with Brauninger v. Ducote, supra, to be wrong. This is particularly so in view of Art. 1, Section 22 of the Louisiana Constitution.

Mrs. Waldrop’s life has been radically changed as a result of her husband’s cancer. Her sex life has been affected due to his impotence. Her social life has been converted from a normal one to one filled with doctors, hospitals, operations, medication and recuperation. She must watch her husband, consumed by the ravages of cancer, as he awaits death.

An injury such as the one alleged by Paul Waldrop does not affect only himself. It manifestly shatters the life of both husband and wife. If ever a case made out a cause of action for mental anguish due to injury to a third person, it is this one. Mrs. Waldrop should be permitted a cause of action in tort against all defendants not falling within the statutory immunity afforded employers under workmen’s compensation.

Because of the long line of jurisprudence and because our Supreme Court has had many opportunities to change the law but has failed to do so, we reluctantly must reject Mrs. Waldrop’s claims as not being recoverable under current Louisiana law.

For the foregoing reasons, the judgment appealed from is affirmed insofar as it rejected Paul Waldrop’s claims in tort versus Uniroyal, Inc. It is also affirmed insofar as Windolyn Waldrop’s claims for services rendered, loss of pleasures of married life and mental anguish versus Uniroyal, Du Pont and Monsanto are concerned. The judgment dismissing Uniroyal as a defendant based on its membership in CMA is reversed. All costs are to await final determination on the merits.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . LSA-R.S. 23:1032 provides in part:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

      . To the extent Bazley v. Tortorich, 380 So.2d 727 (La.App. 4th Cir. 1980), writ granted 383 So.2d 1263 (La.1980), redefines “intentional,” we note that the decision flies in the face of long established jurisprudence and decline to follow it.

      . “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

      . We do not maintain that Mrs. Waldrop’s anguish is any greater than that of Mrs. Brauninger in Brauninger v. Ducote, supra, who suffered from the aggravated rape of her five year old daughter by the seventeen year old son of a neighbor. Both Mrs. Waldrop and Mrs. Braun-inger should recover.

      . The difficulty in determining who should recover for mental anguish due to injury to a third person should not be a basis for refusing recovery where it is just. We quote with approval from Justice (then Judge) Lemmon’s concurrence in Brauninger.

      “The principal argument against allowing damages for emotional distress caused by injury or peril inflicted upon another person is that many false claims will be presented to the courts. Nevertheless, this problem (like most legal problems) is one of where to draw the line, and the drawing of lines must be done rationally.
      It is far more rational to compensate only the carefully scrutinized valid claims of tort-caused emotional distress than to deny compensation in all cases because some (or even most) claims are not valid. The difficulty of the problem does not warrant the unjustness of the present solution. Indeed, the present solution disregards the very essence of the judicial process.
      Just as the courts have responded to the challenge of just adjudication of difficult claims of traumatic neuroses, the court should accept and meet the challenge of these difficult but often real claims of emotional damages.”
      381 So.2d at 1249.


author: LOTTINGER, Judge.

text:
    In the Matter of the SUCCESSION of Solomon K. KINCHEN.
    No. 13620.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Richard L. McGimsey, Baton Rouge, for plaintiffs-appellees, Isaac Kinchen, Samuel Kinchen, Solomon Kinchen, Joseph Kinchen, Elizabeth Satterfield, Lovey Satterfield.
    Patrick J. Cooper, Baton Rouge, for defendant-appellant, Ellen Haynes Foster.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The validity of a nineteenth century marriage forms the substantive issue on this appeal, but a procedural question concerning prescription is also at issue. These issues arise in a suit by collateral heirs of the deceased, Solomon Kinchen, to be placed in possession of his estate.

Solomon K. Kinchen died on May 16, 1950. A judgment of possession was rendered on September 20,1950, naming Annie Bell Haynes Kinchen, his surviving widow, as sole heir of the property of the deceased and putting her in full possession thereof, including possession of a lot of ground in Baton Rouge which was separate property of the deceased, which is at issue in this litigation and which is described as follows:

Lot 3, Square 5, Suburb Dupree, bearing Municipal address 814 South 16th Street in the City of Baton Rouge, Louisiana.

On July 24, 1952, another petition was filed in Solomon Kinchen’s succession by alleged heirs of the deceased, one of whom, Isaac Kinchen, is the petitioner in the present action. That suit was dismissed as having been abandoned on October 1, 1974, under the provisions of La.C.C.P. art. 561.

Annie Bell Haynes Kinchen died on November 14, 1974, and a judgment of possession was rendered the following year naming her sister, Ellen Haynes Foster — the defendant in the present action — as the sole heir of Annie Bell and putting her into possession of Annie Bell’s property, including the lot in dispute.

The present action was filed by Isaac Kinchen on April 18, 1975, and the other collateral heirs later authorized him to pursue their claims. The plaintiff’s basic allegation is that Solomon K. Kinchen died intestate, leaving no direct descendants, and that his succession should devolve upon his collateral relations before and in advance of his wife. Ellen Haynes Foster answered the suit, claiming, inter alia, that Annie Bell was indeed the sole heir of Solomon Kinchen because Solomon and his brothers and sisters were all the illegitimate children of William “Saint” Kinchen and Ellen Smart. Under Louisiana law, the surviving spouse inherits to the exclusion of so-called “natural” brothers and sisters. La.C.C. art. 924; Duplessis v. Young, 11 La.Ann. 120 (1856); Wilson v. Rogers, 14 So.2d 650 (La.App. 2nd Cir. 1943).

Ellen Haynes Foster also alleged that the present action is prescribed under the provisions of La.R.S. 9:5682. That plea was dismissed in the trial court. An additional peremptory exception of prescription was filed on appeal in this court by Ms. Foster, who claims that the collateral heirs’ action is also prescribed under the provisions of La.C.C.P. art. 2004, which allows an aggrieved party to sue for the nullity of a judgment within one year of discovery of the fraud or ill practices which led to the rendition of the judgment.

PRESCRIPTION

In the peremptory exception filed in this court, the defense alleges that the collateral heirs’ action is in the nature of a nullity action seeking to nullify the judgment of possession rendered in behalf of Annie Bell Haynes Kinchen in 1950. The plaintiff’s petition alleges that the judgment of possession rendered in behalf of Annie Bell was obtained by some “fraud or artifice” on Annie Bell’s behalf. The circumstances of the alleged fraud or artifice were known by the plaintiffs when they filed their first suit in 1952 to be placed into possession of Solomon Kinchen’s property. So there is no doubt that if Article 2004 applies in this case, the plaintiff’s action has prescribed. We do not feel, however, that Article 2004 is applicable because a special provision in the civil code ancillaries, R.S. 9:5682, specifically provides the prescriptive period applicable to cases of this nature. Every petition to be placed in possession of a succession in which a judgment of possession has already been rendered will necessitate the nullifying of the previous judgment should the plaintiffs prevail. But such a petition is in the nature of a suit for possession and for ownership rather than a suit to nullify a previously rendered judgment. Our legislature has provided a specific prescriptive period for actions by heirs not recognized in a judgment of possession who later seek to obtain property that has passed into the hands of a third person. That prescriptive provision is embodied in R.S. 9:5682.

In a well reasoned opinion on the prescriptive issue raised under R.S. 9:5682, the trial court denied Ms. Foster’s peremptory exception. Although R.S. 9:5682 has been amended since this action was filed, our Supreme Court has held that a proceeding of this nature commenced prior to. the amendment is governed by the former provisions of the statute. Jackson v. D’Aubin, 338 So.2d 575 (La.1976). The prescriptive issue is therefore governed by the provisions of R.S. 9:5682 as that statute read prior to 1975. In pertinent part, the statute provided:

Section 1. An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated.
As used herein, “third person” means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.

Ms. Foster professes that she is a “third person” under the terms of the statute, that she acquired the property through a person recognized as an heir of the deceased in a judgment of possession and that she and her ancestor in title have been in continuous and uninterrupted possession of the property for more than ten years after registry of the judgment of possession. The plaintiffs claim, however, that Ms. Foster cannot “tack” the possession of Annie Bell to make up the required ten years because Annie Bell’s possession was in “bad faith.” The plaintiffs cite All-State Credit Plan Natchitoches, Inc. v. Ratliff, 279 So.2d 660 (La.1972). The case cited is clear authority for the proposition that where an heir has falsely alleged sole heirship in a succession, possession of property transmitted through the succession to the heir pursuant to a judgment of possession is bad faith possession. The case further provides that only good faith possession can be tacked by a third person seeking to invoke the provisions of R.S. 9:5682.

As we see it, the question of whether Annie Bell was in good or bad faith in alleging sole heirship in Solomon Kinchen’s succession turns on the same issue which governs the substantive question in this case. That issue is whether Solomon Kin-ehen and his brother and sister were the legitimate offspring of William “Saint” Kinchen and Ellen Smart. Their legitimacy, in turn, depends upon whether William “Saint” Kinchen and Ellen Smart were ever legally married. We will, therefore, defer our decision on the peremptory exception of prescription until we address the merits of the case.

VALIDITY OF THE MARRIAGE

William “Saint” Kinchen and Ellen Smart were allegedly married in 1877. Of this union three children who play a role in this dispute were born: Solomon, the deceased; a brother, Esiakiah; and a sister, Ethyl (or Ethel). All took the surname Kinchen. Esiakiah and Ethyl predeceased Solomon, but left children who are the plaintiffs in this litigation. As noted above, when Solomon died, his wife, Annie Bell, petitioned to be placed in possession of his property as his sole heir at law. When some of the present plaintiffs sued in the 1950s to be placed into possession of the property, Annie Bell raised the same defense that Ellen Haynes Foster raises today — that Saint Kinchen and Ellen Smart were never legally married and that their children were therefore illegitimates.

The sole documentary evidence presented to show that a marriage was confected between Saint Kinchen and Ellen Smart was an application for a marriage license dated March 3, 1877, authorizing the marriage of William Kinchen and Ellen Smart. The marriage license itself was never filed in the courthouse records, nor was any record of its existence kept. The documentary evidence also shows that on October 14, 1895, one S. Kinchen and Ella Chaney obtained an application to be married in the same parish. No record of a separation or divorce between William Kinchen and Ellen Smart was submitted in evidence nor was any attempt made to show that the person named William Kinchen and the person named S. Kinchen were or were not the same person.

The only oral testimony concerning the marriage between William “Saint” Kinchen and Ellen Smart came from the nominal plaintiff, Isaac, who testified that as a four-year-old child he heard his mother and grandmother speak about his grandmother’s marriage to Saint Kinchen. Isaac testified that he remembered his grandmother talking about her husband. She told Isaac she divorced Saint Kinchen because he was a jealous man. Isaac apparently did not know Saint Kinchen at all, and opined that Saint Kinchen “went away and married somebody else, I reckon.” On cross examination, Isaac admitted that his grandmother lived with one Mayday Robinson for the entire time he has known his grandmother.

The defense introduced into evidence certain answers to interrogatories filed by Annie Bell Haynes Kinchen in the succession proceedings which took place in the 1950s. In those answers, Annie Bell stated that her husband knew nothing about his father because he (her husband) was reared by Mayday Robinson, his stepfather. She also said that her husband did not know whether or not his father and mother were lawfully married. Her husband told her, however, that his property would go to her upon his death.

Like the trial judge, we find that the evidence presented by the plaintiff is sufficient to show that a valid marriage took place between William “Saint” Kin-chen and Ellen Smart. It was not necessary for the plaintiff to prove that an actual ceremony took place because such proof cannot always be made. Boykin v. Jenkins, 174 La. 335, 140 So. 495 (1932). When the marriage sought to be proved took place more than a hundred years ago, proof of its confection is obviously difficult to obtain. The fact that a marriage license was taken out and the fact that the children took the surname are sufficient to prove that William “Saint” Kinchen and Ellen Smart were legally married. The plaintiffs in this case are therefore the lawful collateral heirs of the deceased, and are entitled to be placed in possession of the property described earlier in this opinion. Our finding that the marriage was valid and that the heirs are legitimate results, concomitantly, in a finding that Annie Bell’s allegation of sole heir-ship was in bad faith, rendering her possession of the property to be in bad faith. The trial court’s decision overruling the peremptory exception of prescription under R.S. 9:5682 is affirmed.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed in all respects. The costs of this proceeding will be borne by the defendant.

AFFIRMED.

      . The named plaintiff in this action, Isaac Kin-chen, a nephew of the deceased, obtained a power of attorney from Samuel Kinchen, Solomon Kinchen, Joseph Kinchen, Elizabeth Sat-terfield and Lovey Satterfield, all of whom claim to be lawful nephews and nieces of the deceased. The power of attorney authorizes Isaac to prosecute this suit on their behalf.


text:
    Vinell LANIEUX v. IBERVILLE SERVICES, INC., and United States Fidelity and Guaranty Company.
    No. 13634.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Refused Dec. 5, 1980.

      Aub A. Ward, Baton Rouge, for plaintiff-appellant Vinell Lanieux.
    Ben Louis Day, Baton Rouge, for defendants-appellees Iberville Services, Inc. and United States Fidelity & Guaranty Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation case. The sole issue on appeal is whether the plaintiff proved that he is experiencing pain sufficient to render him totally and permanently disabled. In a thorough and well reasoned opinion, the learned trial judge found that the plaintiff failed in his burden of proving that he had substantial pain. We adopt the following reasons of the trial court as our own:

“Plaintiff, Vinell Lanieux, was employed by Iberville Services, Inc., as a welder. On April 4, 1978, while in the course and scope of his employment, Lanieux was struck in the back by a falling piece of angle iron. As a result of this injury he has asked for an award of full compensation benefits, contending that at the trial he was totally and permanently disabled within the meaning of the Workmen’s Compensation Act. The defendant’s workmen’s compensation insurer, United States Fidelity & Guaranty Company, paid benefits to plaintiff through May 10, 1978, but thereafter discontinued payments. Plaintiff contends that the refusal to pay further compensation benefits was arbitrary, capricious and without probable cause. Plaintiff also seeks penalties and attorney’s fees for the arbitrary refusal to continue compensation benefits.
“On April 5, 1978, Lanieux sought medical treatment from Dr. Richard M. Moon, general practitioner in Plaquemine, Louisiana, who gave Lanieux diathermy on four visits, April 5, 6, 7 & 10, 1978. Dr. Moon then referred Lanieux to Dr. Robert E. Hanchey, neurosurgeon, located in Baton Rouge, Louisiana. Simultaneously on April 11, 1978, Mr. Lanieux’s attorney notified the employer of Lanieux’s claim for workmen’s compensation benefits (Exhibit D-2).
“Dr. Hanchey examined Lanieux on April 10,1978, and found in the examination that Lanieux was suffering from a lumbar strain manifested by mild paralumbar muscle spasm. It was suggested that he seek bedrest, heat and analgesics and return in two weeks for re-evaluation.
“On April 19, 1978, Lanieux returned to Dr. Hanchey complaining of back and bilateral leg pain, particularly in the upper posterior thighs. His examination demonstrated a marked amount of voluntary guarding. The examination was negative and Lanieux was instructed to rest for approximately two weeks and return for re-evaluation. Tylenol # 4 was prescribed. Dr. Hanchey stated Lanieux never returned and that Lanieux should make a good recovery without other invasive diagnostic or surgical therapies. (Exhibit D-6).
“Mr. Lanieux then sought treatment from Dr. A. K. Fleet, general practitioner in Baton Rouge, who referred him to Dr. Stephen M. Wilson, orthopedic surgeon. Dr. Wilson examined Lanieux on May 10, 1978, and stated he could find no reasons he was having severe difficulties. Dr. Wilson stated the contusion to the lower back had sufficient time to heal and suggested he return to work. Lanieux returned to Dr. Wilson on May 17, 1978[;] however, Dr. Wilson reiterated his prior findings of May 10, 1978.
“Mr. Lanieux then sought chiropractic treatments from Dr. Cosimo Anthony Mar-tello on June 12, 1978, who gave him approximately thirty-five treatments, from June 12, 1978, to October 19, 1978, which treatments consisted primarily of adjustments and therapy. The therapy consisted of traction and use of the hydroculator and G-5 vibrator. (Exhibit P-2). In the meantime, the employer and its insurer were notified that Joel B. Dickinson was now representing the claimant. (Exhibit D-10). The chiropractic report reflected the x-rays were negative but his diagnosis was that Lanieux had sustained a traumatic contusion of the first sacral roots, although no neurological defects were manifested. Lan-ieux testified he commenced seeing Dr. Martello after retaining Mr. Dickinson to represent him.
“After U.S.F. & G. terminated the weekly benefits effective May 10, 1978, Lan-ieux’s attorney, Joel B. Dickinson, informed Mr. Roy Reine, claims adjuster for U.S.F. & G.[,] that Lanieux was still in pain and asked that he be re-examined by Dr. Stephen Wilson. Dr. Wilson re-examined Lan-ieux on August 11, 1978, and stated the examination was negative for any objective findings and suggested his returning to work. (Exhibit P-7).
“At the request of his present attorney, Lanieux was examined by Dr. Kenneth Vo-gel, neurologic surgeon, New Orleans, Louisiana. Dr. Vogel stated he examined Lan-ieux on January 4, 1979, and found mild right lumbar paraspinous muscle spasm. He suggested that Lanieux had a chronic lumbosacral strain with radicular findings suggestive but not diagnostic of a disc herniation. Dr. Vogel suggested conservative care plus intensive physiotherapy and to return in a month.
“On February 6, 1979, Lanieux returned to Dr. Vogel’s office stating the therapy had temporarily relieved his condition but related low back and bilateral leg pain. Dr. Vogel stated the neurological examination was unchanged except for this time the bow string sign was positive. The bow string sign was explained as:
“A. ‘Bow string sign is really pressing on the nerve — under normal circumstances, if you press on the nerve, it might be mildly uncomfortable. If the nerve is in pain and the patient exhibits it as being painful, we call that sign a bow string sign.’ (Exhibit P-5 page 10).
“At the February 6, 1979, examination Dr. Vogel suggested hospitalization of Lanieux for a complete re-evaluation plus a myelo-gram and lumbar discogram.
“Lanieux was admitted to the Mercy Hospital of New Orleans on March 11, 1979. A myelogram was performed March 12 and a discogram performed on March 14, 1979. Dr. Vogel stated these test[s] were negative and that Lanieux did not have a herniated lumbar disc. With these test[s] being negative Dr. Vogel suggested that Lanieux then might be experiencing symptoms secondary to lumbar myofascial pain syndrome. Dr. Vogel then performed a rhizotomy on March 16, 1979, while Lanieux was still confined in the hospital. Rhizotomy was defined as the cutting of the pain nerve with an electrode.
“Dr. Vogel stated that a person can normally commerce light type work three months after the rhizotomy[,] whereas heavy work is a bit longer — anywhere from three months to a year. Dr. Vogel’s records reflected seeing Lanieux on May 1, 1979, June 12,1979, and August 16,1979. At the last visit Dr. Vogel stated Lanieux was progressing satisfactorily and it was not felt he should return unless he needed to.
“Dr. Wilbert McClay, Jr., general practitioner of Plaquemine, Louisiana, since February 1978, testified he first saw Lanieux on August 10, 1979, at which time Lanieux was complaining of back and stomach pains. Dr. McClay hospitalized Lanieux in the Rhodes J. Spedal General Hospital from 8/20 to 8/31, 1979, during which confinement the treatment consisted primarily of target point injections. Dr. McClay described target point injections as injecting various pain drugs in the pain area. (See Exhibit P-6 for the various drugs used).
“Dr. McClay testified that after Lan-ieux’s hospital welfare care expired, he gave office injections with the drugs left over from the hospital confinement.
“Both Dr. Vogel and McClay related that their treatment was attributed to the back injury of April 4, 1978. [These] opinions were based on the history obtained from the patient. Dr. McClay’s prognosis of Lan-ieux was ‘undetermined.’
“Lanieux’s explanation of using Drs. Martello, Vogel and McClay was that he was just trying to find someone to help him.
“This Court is aware that the purpose of the Workmen’s Compensation Act is to protect workers from the hazards that accompany their job and that the Act is to be liberally construed to protect the employee from loss due to employment related to injury, and to place [on] the employer, who can more readily bear it, the risk of that loss. However, in claiming workmen’s compensation benefits the party must establish his alleged disability by a preponderance of the evidence. Robertson v. Valhi, Inc., 345 So.2d 149 (La.App.1st Cir. 1977).
“An analysis of the medical evidence reveals that Drs. Hanchey and Wilson could find no reasons for Lanieux’s complaints, whereas Dr. Martello in June 1978, was under the impression that Lanieux was suffering from traumatic contusion of the first sacral roots and treated him with adjustments and therapy for five months at a cost of $1,449.00. After a negative myelogram and discogram, Dr. Vogel was under the impression that a rhizotomy was necessary and performed such. His bill for services was $1,805.02 with a hospital charge of $2,962.14.
“After carefully considering the testimony of Lanieux and Dr. McClay, the report of Dr. Martello and the deposition of Dr. Vogel, this Court does not find this evidence persuasive and convincing.
“Insofar as the claim for medical expenses, only the bill of Baton Rouge Hospital, the bill of Dr. Martello, Dr. Vogel, Dr. McClay, Mercy Hospital of New Orleans and Rhodes J. Spedale Hospital remain unpaid. In finding the evidence from Drs. Martello, Vogel and McClay as not persuasive and convincing, this Court does not find these medical expenses necessary, [and] as such[,] not recoverable. The bill of the Baton Rouge General Hospital for x-rays on April 10, 1978, was not ever submitted to U.S.F. & G. for payment, even though connected with Dr. Hanchey’s examination. This medical expense is to be paid by the employer and/or its insurer.
“Accordingly judgment is rendered herein in favor of Iberville Services, Inc., and United States Fidelity and Guaranty Company and against Vinell Lanieux denying his claim for compensation under the Louisiana Workmen’s Compensation Act and denying all medical expenses, excepting the sum of $40.00 owing the Baton Rouge General Hospital for x-rays of April 10, 1978.
“The witness fee of Dr. McClay is fixed at $50.00. All costs[s] are to be paid by plaintiff.”

Whether pain suffered by a workmen’s compensation claimant is substantial enough to be disabling is a question of fact to be decided by the trial judge. The decision depends upon an evaluation of the plaintiff’s credibility and upon the preponderance of the medical and lay testimony. Findings of the trial judge on factual issues in a workmen’s compensation case are entitled to great weight and are not to be disturbed except on a showing of manifest error. Newell v. United States Fidelity and Guaranty Company, 368 So.2d 1158 (La.App.3rd Cir. 1979) and cases cited therein; Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App.3rd Cir. 1979); Farrar v. Guy Atkinson Company, 325 So.2d 893 (La.App.2nd Cir. 1976). The record in the case at bar clearly supports the trial judge’s conclusion on this factual issue.

Plaintiff claims in the alternative on appeal that he should be allowed all of his medical expenses even if workmen’s compensation benefits are disallowed. Under La.R.S. 23:1203, an employer must furnish ail necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal. We find that the only necessary medical expenses arising out of the accident suffered by the plaintiff were those expenses allowed by the trial court. We therefore affirm the trial court’s judgment in this respect.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: SAMUEL, Judge. BARRY, Judge,

text:
    LAKE FOREST, INC. v. KATZ & BESTHOFF # 9, INC.
    No. 11159.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 1980.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Michael R. Fontham, J. Broocks Greer, III, and Sarah S. Vance, New Orleans, for Lake Forest, Inc. and Kenilworth Mall, Inc., plaintiffs-appellants.
    Bronfin, Heller, Feldman & Steinberg, Fred Bronfin and Bernard H. Berins, New Orleans, for Katz & Besthoff No. 9, Inc., defendant-appellee.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   SAMUEL, Judge.

Lake Forest, Inc. and its subsidiary Ken-ilworth Mall, Inc. appeal from a judgment dismissing their eviction suit against Katz & Besthoff # 9, Inc.

Kenilworth Mall entered into a lease with Katz & Besthoff # 9 for premises to be used as a drugstore in the Kenilworth Mall Shopping Center in the City of New Orleans. The lease provided for payment of a monthly rental of $2,045 during the terms of the lease (and escalating thereafter) “in advance of the first day of every month.” In addition, it provided for a subsequent annual rental based on a percentage of net sales for the preceding fiscal year. This percentage was to be computed, reported and paid within ninety days of September 30, the close of the fiscal year.

For several years the lessee was dissatisfied with the adequacy of the air conditioning as it was maintained by the lessor, and in 1978 the condition became acute. By letter dated December 11, 1978 complaint was made as to air conditioning problems occurring between December 3 and December 8, 1978. Thereafter, the president of Katz & Besthoff # 9, Sidney Besthoff, III, telephoned Howard Beck, the president of Lake Forest, to discuss the air conditioning maintenance. The parties agreed to continue discussions, with Mr. Besthoff offering to have his corporate engineers examine the air conditioning (the units were on the roof of the building). Mr. Beck agreed and also undertook to have the units examined. No examination was made by Katz & Besthoff # 9 prior to December 31, 1978 when it made a written report to Lake Forest that the percentage of the rent due under the lease for the preceding fiscal year was $37,-692.66. The letter stated in part: “Check to be mailed when agreement reached regarding the air conditioning problem at this store.”

Upon receipt of the letter withholding the percentage rent Beck wrote to Besthoff rescinding permission to survey the air conditioning units and averring that the operation and maintenance of the units was the landlord’s (Lake Forest’s) responsibility. We note there was insufficient time to make repairs prior to receipt of this letter which rescinded permission to survey the units.

On February 22, 1979 Lake Forest placed Katz & Besthoff # 9 in default for nonpayment of the percentage rent. Under the terms of the lease, failure of the lessee to correct such a default within 30 days allowed the lessor to cancel the lease “immediately or as of any date which the lessor may select.” Katz and Besthoff # 9 did not make payment within the 30 day period and Lake Forest cancelled the lease. Lake Forest did continue to accept the monthly basic rent through March, 1979. However, after the lease was cancelled these checks were returned.

On April 27, 1979 Lake Forest sent lessee a notice to vacate by certified mail, and a similar notice also was served by the civil sheriff. The mailed notice was received April 30, 1979.

On April 25, 1979 Katz & Besthoff # 9 mailed two checks to Lake Forest for the basic monthly rent for May. These checks were returned. On May 4, 1979 (after receipt of the notice to vacate) Katz & Bes-thoff # 9 sent the monthly rent for May and the annual percentage rent they had previously withheld. This check was returned as were checks dated May 25, 1979 for the percentage rent and basic monthly rental.

After service of the notice to vacate the parties started negotiations for a new lease. While these negotiations were pending a tender of the outstanding basic monthly rent and annual percentage rent was made on July 2, 1979. These checks were retained (but not negotiated) by Lake Forest, whose comptroller went on vacation prior to receipt of a letter from Katz & Besthoff # 9 ending negotiations on July 9, 1979. Proceedings then were instituted to enforce cancellation of the lease; the rule for eviction was filed on July 13, 1979. The checks were returned July 26, 1979.

At the trial the parties stipulated the units were in need of repair, and testimony indicates Lake Forest had been repairing the system on a hit-or-miss basis while performing regular maintenance on the units.

The trial court found for defendant, stating that withholding rent prior to making repairs did not satisfy the requirements of C.C. Art. 2694, but that the tenant was precluded from making the repairs and then withholding the cost thereof from the rent by the action of the landlord in withdrawing permission to survey the units pri- or to placing defendant in default.

Lake Forest appealed and Katz & Bes-thoff # 9 answered the appeal contending the district court erred in overruling certain exceptions filed prior to trial, namely dilatory exceptions of prematurity and nonjoin-der of a necessary party plaintiff, and peremptory exceptions of no right or cause of action.

The questions presented by this appeal are whether or not a lessee may withhold the rent prior to his making necessary repairs, if the lessee is precluded from making those repairs due to actions of the lessor, and the merit, if any, of appellee’s exceptions.

The basic purpose of Article 2694 is to allow a lessee to repair at the lessor’s expense- those things which the lessor is required to repair.

Shell v. Banks has withstood the test of time as the leading judicial interpretation of C.C. Art. 2694. In that case the court set out these three prerequisites to the lessee’s use of the repair and deduct article. First, the lessee must call upon the lessor to make the repairs and thereby put the latter in default of his obligation to repair. Second, the lessee must show the repairs are indispensable. And finally, the lessee must in fact make the necessary repairs neglected by the defaulting lessor, and prove that the price paid for making the repairs is just and reasonable.

Although the cases hold that failure of the lessor to accomplish the necessary repairs is not justification for the lessee’s refusal to pay rent when due, the lessee may either make the repairs and deduct the cost thereof, or sue for cancellation of the lease. We know of no case and have been cited to none where, as here, the lessor has prevented the lessee from exercising the right granted to it under Article 2694.

The trial court found that before the letter of default was sent by the plaintiff to the defendant (giving 30 days to pay the full rent due), there was a prior letter depriving the lessee from the opportunity of exercising its Article 2694 right to make necessary repairs and then deduct the cost thereof from its rental payments. The record supports this finding. The record also supports a finding that the air conditioning was functioning so inadequately as to effectively prevent a proper and contemplated use of the leased premises by the defendant. Thus, the court found the lessee was not in default so as to support an eviction; it refused to permit the lessor to unilaterally deny the lessee the opportunity to repair and at the same time demand the rent.

The decision of the trial court is practical and equitable. While the jurisprudence under Article 2694 is to the effect that rent can be withheld only after repairs actually have been made, in our view a lessor cannot effectively prevent the making of the repairs and thus deprive the lessee of one of his rights. This view is consistent with our Supreme Court’s rationale in Cox v. Department of Highways, 252 La. 22, 209 So.2d 9:

“Where the promisee makes performance impossible, it is unimaginable that any civilized system of law would allow that promisee to recover damages for the promisor’s failure to perform under the contract. It is a long established principle of law that he who prevents a thing may not avail himself of the non-performance he has occasioned. The principle is founded upon the premise that one should not be able to take advantage of his own wrongful act.”

Our affirmance of the trial court judgment makes a consideration of the exception issues, raised in appellees’ answer to the appeal, unnecessary.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

BARRY, J., dissents with written reasons.

BARRY, Judge,

dissenting.

Our law provides that the lessee may be expelled from the property if he fails to pay the rent when it becomes due. LSA-C.C. Art. 2712. If the lessor neglects to fulfill his obligations it may cause dissolution of the lease. LSA-C.C. Art. 2729. If a lessor neglects or refuses to make necessary repairs, the lessee may cause those repairs to be made and deduct the price from the rent due on proving that the repairs were indispensable and that the price which was paid was just and reasonable. LSA-C.C. Art. 2694.

Our jurisprudence interpreting these articles is well settled that a lessor’s breach of his obligation to repair the leased premises does not exonerate the lessee from his obligation to pay the stipulated rental if he continues to occupy and use the premises. Degrey v. Fox, 205 So.2d 849 (La.App., 4th Cir. 1968); Cameron v. Krantz, 299 So.2d 919 (La.App., 3rd Cir. 1974).

If the lessor fails to make repairs required by the lease or by law, the lessee at his option may:

(1) Complete the repairs himself within a reasonable time, and then deduct the cost of them from the rent to become due, on proving that the repairs were indispensable and that the price paid was just and reasonable; or
(2) He may terminate the lease and surrender possession of the premises to the owner. Cameron v. Krantz, 299 So.2d 919 (La.App., 3rd Cir. 1974).

It is clear that lessor and lessee amicably discussed the need for air conditioning repairs. Each agreed to investigate what should be done. However, lessee then chose to use economic pressure by failing to pay its annual rental. If lessee had been in good faith it would have paid what was due and while it had the opportunity to determine what repairs should be made, effected the repairs and paid for same, then used this payment as an offset against rents due.

The annual rental was payable to lessor by December 31, 1978 for the fiscal year October 1, 1977 to September 30, 1978. Even though air conditioning problems existed prior to and during that period, it was stipulated that lessor made repairs from time to time and did have a maintenance program.

Lessor had no alternative but to terminate the lease in view of lessee’s failure to timely pay its rental while continuing to occupy the premises. After lessee defaulted it effectively lost any rights it may have had under the lease.

LSA-C.C. Art. 2694 provides that if the lessor refuses or neglects to make necessary repairs .. . “the lessee may himself cause them to be made, and deduct the price from the rent due, . . ..” Here the lessor did not refuse to make necessary repairs. The lessee had the opportunity and time on prior occasions to make repairs, but didn’t. Finally, withholding “rent due” does not mean past rent due. All lessee had to do was place lessor in default, make the repairs, and deduct the expense from the rents due. The lessee chose to withhold rent, effect no repairs, and continue to occupy the premises, all of which constitutes bad faith and a breach of contract.

I therefore respectfully dissent.

      . Subsequent to the execution of the lease the ownership of the mall and the interest of that corporation in the lease was transferred to Lake Forest, Inc. as part of a corporate reorganization.

      .“If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglects to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable.” LSA-C.C. Art. 2694.

      . 8 Rob. 168.

      . Brignac v. Boisdore, La.App., 272 So.2d 463, affirmed, La., 288 So.2d 31.

      . See Dikert v. Ruiz, La.App., 231 So.2d 633; Bruno v. Louisiana School Supply Company, Inc., La.App., 274 So.2d 710.


author: LOTTINGER, Judge. EDWARDS, Judge, ELLIS, Judge,

text:
    Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana v. GULF COAST ALUMINUM CORPORATION et al.
    No. 13933.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Granted Feb. 6, 1981.

      Riley F. Boudreaux, Baton Rouge, for appellant.
    G. William Jarman, Baton Rouge, for ap-pellees.
    Before ELLIS, COVINGTON, LOTTINGER, CHIASSON, EDWARDS, PONDER, LEAR, COLE and WATKINS, JJ.
   LOTTINGER, Judge.

Appellees, Gulf Coast Aluminum Corporation, Consolidated Aluminum Corporation and Conalco, Inc., filed a motion to dismiss the unlodged appeal by appellant, Joseph N. Traigle, Collector of Revenue, State of Louisiana, as not being timely.

From both briefs we glean the following facts. Judgment was signed and notice mailed to all parties on January 30, 1980. The delays for applying for a new trial expired on February 8. La.C.C.P. art. 1974. A new trial was not applied for, therefore the devolutive appeal delay expired on April 8. La.C.C.P. art. 2087. On March 3 appellant mailed to the clerk of court for East Baton Rouge Parish a pleading entitled “petition and order for appeal,” which was filed on March 6, though no order of appeal was actually included in the pleading mailed. Again, on April 2 an order of appeal was mailed to the clerk of court, which order was filed on April 7. The appeal order was eventually signed on April 14, 1980.

Appellees-movers cite Fidelity Bank & Trust Co. of Slidell v. Pinewood Country Club, Inc., 250 So.2d 577 (La.App. 1st Cir. 1971), whereas appellant cites Hall v. Board of Supervisors, Southern University, La.App., 387 So.2d 643.

In Fidelity, this court held that:

“Article 2121 of the Code of Civil Procedure provides that an appeal is taken by obtaining an order therefor. Filing a petition and order of an appeal with a clerk prior to the expiration of delays for appeal does not meet the foregoing requirement. It is counsel’s responsibility to see that an order of appeal is obtained timely and not that of the clerk of court.”

See also Abernathy v. Stanley A. LaFargue and Associates, Inc., 382 So.2d 1002 (La.App. 1st Cir. 1980); Willie V. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977); Thomas v. Berman, 308 So.2d 797 (La.App. 4th Cir. 1975); Rodrigue v. Ziifle, 297 So.2d 793 (La.App. 4th Cir. 1974).

In Hall v. Board of Supervisors, Southern University, supra, a panel of this court without citing Fidelity Bank & Trust Co. of Slidell v. Pinewood Country Club, supra, or Willie v. Otasco, supra, but rather relying on Davidge v. Magliola, 346 So.2d 177 (La.1977) and McLaughlin v. Home Indemnity Insurance, 361 So.2d 1226 (La.App. 1st Cir. 1978), held that “the failure of the clerk’s office to promptly deliver appellant’s motion and order to the trial judge or of the trial judge to promptly consider and sign the same is not an irregularity, error or defect imputable to the appellant.” In McLaughlin, supra, the question was the timeliness of a motion for a new trial, and in Davidge, supra, the question was who has the responsibility for obtaining an extension of the return day.

Inasmuch as there are conflicting opinions from this circuit (Fidelity and Hall) this court, under the Internal Rules, Court of Appeal, First Circuit, shall resolve the difference by sitting en banc.

Is a devolutive appeal perfected by the timely presenting of the order of appeal to the clerk of court or the judge, or by the timely signing or granting of the order of appeal? This is the issue that must be decided.

It is well settled that the law favors appeals. La.C.C.P. art. 2161 in pertinent part provides:

“An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.”

But the law is also clear that “an appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” La.C.C.P. art. 2121.

Does an appellant fulfill the clear mandate of Article 2121 by merely filing an unsigned order of appeal with the clerk of court, or mailing to the clerk of court an order of appeal with a written request that same be presented to a judge for his signature, or that an order be deposited with the judge’s secretary in hopes that she will secure her boss’s signature?

These are all occurrences that commonly take place. The practitioner is too busy to personally seek out the judge for his signature, or too busy to wait to personally obtain the judge’s signature, or too busy to go to the judge’s office. Rather, we find the U. S. Postal service used to deliver a request across town or from another parish, or an employee not trained in the significance of a timely order of appeal is assigned an all important task of securing a judge’s signature or delivering an appeal order for signature. Appellants often mail appeal orders to the clerk of court or to the judge not knowing whether they will ever be received, and if received, when.

We are of the opinion that Article 2121 is clear. It is not the filing of an unsigned order of appeal with some individual in an office that perfects an appeal, rather, it is the timely obtaining of a proper signature on that order, or the timely granting of an oral motion, that perfects the appeal. When an appellant relies on the U. S. Postal Service, an accommodating clerk of court or a willing secretary to secure an order of appeal, and the order is not timely signed, then the fault must lie with the appellant. It is imputable to him.

Should this court, much less the appellate courts of this state, refuse to dismiss an appeal where an order is not granted timely under the guise that appeals are favored and any fault in not having the order signed timely should fall on someone other than the appellant? We think not. The responsibility of obtaining a timely order of appeal properly belongs to appellant and to neither the clerk of court nor the judge. It is not the responsibility of either of these officials to do the work of a party litigant or counsel.

In Davidge v. Magliola, supra, our Supreme Court did hold that it was the responsibility of the clerk of court to seek an extension of the return day for an appeal when the record could not be lodged timely because appellant had not paid the court reporter fee. However, the court relied on La.C.C.P. art. 2125 for its authority. Under the instant facts, we know of no statutory requirement making it incumbent on the clerk of court to guarantee that a judge sign an order of appeal timely.

We realize that the clerk of court may grant an appeal and fix the return day whether the district court judge is absent from the parish or not. La.C.C.P. arts. 282 and 285. However, this authority, which is rarely used, places no more responsibility on the clerk than is placed on the judge to sign an appeal order timely. If the clerk is requested to sign the order and he refuses, or even if the judge refuses to sign, a writ of mandamus to this court would be the proper remedy. But that is seldom the problem. The true fault is with the appellants in expecting someone to do their work for them, and then in not adequately following up to guarantee that it has been done.

We are convinced that with the legislature’s amendment of La.C.C.P. art. 2124 to delete the requirement of security for a devolutive appeal, there is no longer any viable reason to continue to require an order for a devolutive appeal. It would seem that all that would be necessary would be the timely filing of an appropriate notice of appeal in the record of the proceeding. This, however, is not the law, and Article 2121 was not changed. Therefore we must continue to require the timely granting of an order of appeal. This is a change that properly addresses itself to the legislature.

Considering the views expressed above, we overrule the opinion of this court in Hall v. Board of Supervisors, Southern University, supra.

Therefore, for the above and foregoing reasons, the appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.

EDWARDS, J., concurs and assigns reasons.

ELLIS, J., dissents and assigns reasons.

CHIASSON, WATKINS and LEAR, JJ., dissent for reasons assigned by ELLIS, J.

EDWARDS, Judge,

concurring:

I agree with the result reached here by the majority. If confession is good for the soul, this writer must acknowledge his error in signing the decision in Hall v. Board of Supervisors, Southern University, La.App., 387 So.2d 643, on the Docket of this Court.

I wrote Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir. 1977), and still agree with it.

The “obtaining” of an order of appeal under La.C.C.P. 2121 is essential, I think, for appellate jurisdiction to attach.

The matter of dismissal of appeals because of any other irregularity, error or defect “imputable to appellant” has nothing to do with the matter of correctly obtaining an order of appeal.

The Supreme Court, on October 6, 1980, although with a dissent, denied writs in Hall. Here, this court, divided five to four, overrules Hall. This posture calls out for an opinion from the Supreme Court determining if “obtained” means what I think it means, or if it means file, and then perhaps mail, or attempt to file or mail.

Although appeals are favored in the law, I believe that “obtain” means get it done and not file it. There is enough delay in the law now. We don’t need any more.

For these reasons, I concur.

ELLIS, Judge,

dissenting:

In this case, as in the other similar cases cited in the majority opinion, the motion for appeal was timely filed with the Clerk of the District Court, but not signed by the District Judge until after the delays had run. The majority has held that the responsibility for having the order timely signed rests with the appellant under those circumstances. I cannot agree.

Surely, if the order had timely been placed in the hands of the judge by the appellant, and the judge then failed to sign it for some reason until after the delays had run, it could not be seriously argued that the failure or neglect of the judge would be imputable to the appellant.

Under Article 282 of the Code of Civil Procedure, the Clerk of a District Court has the authority to sign an order of appeal. Under Article 285, he may exercise this authority whether or not the judge is present in the parish. Therefore, when an order of appeal is filed with the Clerk of Court, it has been placed in the hands of a public official who is authorized by law to sign it. It may be that the Clerk is not required to present the order to the judge, but I believe that, if he does not do so, he is required to sign it himself.

In my opinion, the appeal should be maintained.

      . La.C.C.P. art. 2087(1) makes reference to an application for a new trial that had been filed timely, whereas La.C.C.P. art. 2121 speaks of “obtaining an order,” which implies a signature vis-a-vis the filing.

      . Act 176 of 1977 Regular Session.


author: JASPER E. JONES, Judge.

text:
    UNITED PENTECOSTAL CHURCH INTERNATIONAL, INC., et al., Plaintiffs-Appellants, v. Clarence Emery SANDERSON et al., Defendants-Appellees.
    No. 14301.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc. Rehearing Denied Dec. 8, 1980.
    Writ Refused Feb. 6, 1981.

      Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for plaintiffs-appellants.
    Johnston, Thornton, Dawson & Hunter by James R. Dawson, Shreveport, for defendants-appellees.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiffs, United Pentecostal Church International, Inc., and Robert G. Gilbert, R. J. Cross, D. J. Fulgium, Robert Sessums, Jr., Orville L. Ainsworth, Hugh M. Gilbert, Aubrey D. Sanderson, and Ricky Jones, individuals who allege themselves to be former members and/or members of the Board of Directors of the First Pentecostal Church of Vivian, Inc., appeal a judgment sustaining an exception of lack of jurisdiction over the subject matter to the plaintiffs’ petition containing numerous demands against defendant Clarence Emery Sanderson, Pastor of the First Apostolic Church of Vivian, Inc., and the Board of Directors of said church. The demands contained in the petition seek to resolve numerous church-related disputes existing between plaintiffs and defendants. We affirm.

Plaintiffs allege the First Pentecostal Church of Vivian, Inc.’s name was changed by defendants to the First Apostolic Church of Vivian, Inc., (Apostolic), and that said churches are one and the same. Plaintiffs allege the First Pentecostal Church was affiliated with United (referred to in pleadings as the Central Church), and that its successor Apostolic, acting through defendants herein, has, contrary to the rules of United and Apostolic, disaffiliated itself with United.

Plaintiffs allege that the individual plaintiffs were deprived of their membership in Apostolic and that some of them were also terminated as members on the Board of Directors of Apostolic and improperly replaced, by actions taken by defendants without giving them proper notice, and otherwise in violation of the rules governing the church.

Plaintiffs allege that defendant, Sander-son, has been defrocked or declared to be no longer a minister of United and having lost his status as a minister of United is no longer qualified to be a minister of Apostolic.

Plaintiffs allege that defendants have discussed the sale of property belonging to Apostolic.

Plaintiffs pray for a judgment decreeing the action of Apostolic to disaffiliate with United to be null and void because it was taken contrary to the rules and regulations of United and Apostolic, and they further seek a declaratory judgment invalidating the removal of the individual plaintiffs from membership in the congregation and from the Board of Directors of Apostolic. Plaintiffs seek a preliminary and permanent injunction prohibiting defendants from selling or otherwise alienating or encumbering church property and from operating contrary to the by-laws of First United Pentecostal Church of Vivian, Inc. and the constitutional manual of United.

Plaintiffs further pray for a court order requiring defendants to hold an election of “church officers, ministers, board of directors, and officials” for Apostolic after giving notice to all members appearing on the membership rolls as of January, 1977.

The First Amendment to the U.S. Constitution provides:

“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof ...”

A similar provision is contained in Art. 1, § 8 of the 1974 Louisiana Constitution which provides:

“No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof.”

These constitutional provisions forbid governmental interference with religious freedom.

There is a vast body of jurisprudence emanating from the federal and state courts which holds that courts are prohibited by the First Amendment from attempting to resolve church disputes requiring interpretation of church laws and practices because this is interference with ecclesiastical and administrative matters within the church. See Serbian Eastern Orthodox Diocese, Etc. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) and the numerous authorities cited therein. See also Katz v. Singerman, 241 La. 103, 127 So.2d 515 (1961); Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir. 1977); Macedonia Baptist Foundation v. Singleton, 379 So.2d 269 (La.App. 1st Cir. 1979); Joiner v. Weeks, 383 So.2d 101 (La.App. 3d Cir. 1980). It was the mandate of this rule that was the basis of the trial court’s judgment sustaining the exception to jurisdiction over the subject matter. This general rule is subject to the exception that courts may decide controversies relating to property disputes involving religious litigants wherein the disputes can be resolved without the courts becoming involved in controversies involving religious doctrine and practice. See Serbian and Macedonia, supra; Presbyterian Ch. v. Mary E. B. Hull Mem. Pres. Ch., 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969).

Plaintiffs assign as error the trial court’s sustaining the exception of lack of jurisdiction of the subject matter. Plaintiffs contend the trial court erred in refusing to take evidence of the relationship between United and Apostolic which plaintiffs contend would establish that the controversy alleged in their petition could have been resolved without doctrinal or ecclesiastical deliberations. Plaintiffs also contend there exists a property dispute between the litigants to which the First Amendment does not apply.

We view the issues created by plaintiffs’ broad assignments of error to be (1) was the trial court prohibited from inquiring into the controversy relating to the actions of Apostolic in disaffiliating from United and Apostolic’s alleged action of terminating the church memberships of the individual plaintiffs and terminating some of them as members from the Board of Directors? (2) does plaintiffs’ petition contain allegations of a property dispute between the religious litigants that falls within the exception to the rule that courts are prohibited from resolving religious controversies? (3) was the trial court prohibited from inquiring into defendants’ selection of a pastor, members of the Board of Directors, and other church officers, and could the court order an election for a selection of a new slate of church officials?

ACTIONS OF APOSTOLIC IN DISAFFILIATING FROM UNITED AND ALLEGEDLY TERMINATING PLAINTIFFS FROM MEMBERSHIP IN THE CHURCH AND SOME OF THEM FROM MEMBERSHIP ON THE BOARD OF DIRECTORS

Plaintiffs contend that the trial court could have inquired into the issue of disaffiliation and the issues of defendants’ actions in terminating plaintiffs’ church membership and membership of some of thém on the Board of Directors without engaging in doctrinal or ecclesiastical deliberations, and under these circumstances judicial inquiry into these issues would not be prohibited by the First Amendment to the U.S. Constitution. Plaintiffs’ view of the constitutional prohibition is incorrect.

In order to have religious freedom it is essential that all phases of activity necessary and essential to religious worship be free from governmental control. The right to determine religious doctrine and the manner of worship and freedom to engage in religious activities are no doubt the foundation of the First Amendment; but in order for these practices to be effectively assured all related church governing and administrative activities must also be protected from governmental interference.

In the decision of Kedroff v. St. Nicholas Cathedral of Russian O. Ch., 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952), the court in evaluating an earlier opinion of the supreme court stated with approval:

“The opinion radiates, however, a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Id., 73 S.Ct. at 154.

In Serbian, supra, the court cited Kedroff with approval and there stated:

“Religious freedom encompasses the ‘power [of religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine ...” Id., 96 S.Ct. at 2375.

United alleges that defendants incorrectly applied or failed to apply the rules of United and of Apostolic regulating the manner in which Apostolic could properly disaffiliate itself from United and seeks action by the court to invalidate the action of Apostolic in disaffiliating from United. The action that plaintiffs seek the court to take in this regard would be an interference in church government and is exactly what the constitution prohibits. The court is prohibited from reviewing the actions of Apostolic to determine whether or not it correctly applied the rules of Apostolic and the rules of United contained in its constitution in taking its actions to disaffiliate.

We observe from United’s pleadings that it is a Congregational church and those local churches which affiliate with it retain their local autonomy. United’s pleadings reflect that affiliation with it is totally voluntary and that the local church primarily retains full local autonomy. The language from the petition is as follows:

“3A — The United Pentecostal Church International Incorporated owns no property other than its general offices in Hazel-wood, Missouri but property is often held in trust for it by local congregations; it owns no property used by local assemblies in its own name, with the exception of Home Missionary Churches; affiliation with the central church is not mandatory but must be elected by each local assembly which still retains the power to transact local business, acquire and hold title to its property and select its local pastor; the central church only recommends a form of local church government but does not have a mandatory form; the central church is actually a ministerial alliance of individuals with which local assemblies affiliate for identification, fellowship, cooperation and protection; the central church has no hierarchical judicial system for the resolution of problems in the local assembly; it only maintains a judicial procedure for investigation, review and disposition of grievances, complaints and charges filed against the ministers comprising its membership; its voting constituency at the general conferences is comprised only of those who are in the ministry and members of local affiliated church congregations; and the rules and worship practices of a local church are largely dictated by the local assembly within the general framework established by the constitution of the United Pentecostal Church International.” (Tr. p. 78).

A review of the totality of this allegation establishes that we are not here involved with a hierarchical form of church government similar to the factual circumstances found in Serbian, supra.

A review of the relationship which Apostolic is alleged to have with United as set forth in the paragraph above makes it abundantly clear that United has no judicial system for the resolution of problems of the local assembly and that Apostolic is not denied the right to interpret, construe and apply the rules regulating its relationship with United.

The plaintiffs contend that the court should invalidate the action of disaffiliation because it was based upon incorrect application of the rules of procedure and substance applicable to disaffiliation. In Serbian, supra, the Illinois Supreme Court set aside a church determination defrocking a bishrp and the reorganizing of a diocese on the grounds that the church had not followed its own laws in the defrocking of the bishop and reorganization of the diocese. The U.S. Supreme Court reversed holding the Illinois court did not have the power to determine that the action taken was not resolved in accordance with the court’s determination of what the church law was. The court there said:

“The fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals of this hierarchical church upon the issues in dispute, and impermissibly substitutes its own inquiry into church polity and resolutions based thereon of those disputes. Consistently with the First and Fourteenth Amendments ‘civil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law [to decide such disputes] ...’” Id., 96 S.Ct. at 2380.
“For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense ‘arbitrary’ must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; ...” Id., 96 S.Ct. at 2382.

The trial court here followed the mandates of Serbian, supra, in holding that it had no jurisdiction to inquire as to the correctness of the actions of Apostolic in disaffiliating from United.

Plaintiffs’ efforts to have a judicial declaration avoiding the action of Apostolic in terminating the membership in the church of individual plaintiffs and terminating some of their memberships on the Board of Directors without notice and otherwise without following the laws of the church is also a relief prohibited by Serbian, supra, and the trial court correctly determined that it did not have jurisdiction to consider the controversy.

Serbian, supra, teaches that courts may not inquire into what the church rules are, nor may they determine whether or not they have been correctly applied, for such actions by courts are prohibited by the First Amendment to the U.S. Constitution. The termination or selection of a pastor, members, and the members of the Board of Directors by Apostolic clearly involves an application of the church’s rules and regulations, and the trial court would have violated the constitutional requirement of religious freedom if it in any way inquired into whether the proper church rules had been followed in the termination and selection of members and church officials. See Simpson v. Wells Lamont Corporation, 494 F.2d 490 (5th Cir. 1974).

DOES THE PROPERTY EXCEPTION TO THE PROHIBITION OF INTERFERENCE BY COURTS IN CHURCH BUSINESS APPLY HERE?

Plaintiff United does not claim title to Apostolic property nor do any of the individual plaintiffs. There is no contention that Apostolic holds its property in trust for United. Not only are there no affirmative allegations in plaintiffs’ petition that they claim any property right, in defendants’ property which would justify their interference with any action the defendants may seek to take with regard to the sale or mortgage of the property, but rather affirmative allegations of plaintiffs’ petition establish that local churches who affiliate with United may retain control of their property.

The only interpretation of the pleading which could be remotely construed to justify a contention that plaintiffs are entitled to assert a right to exercise any control of defendants’ property would relate to the contention that some of the plaintiffs were improperly removed from office as members of the Board of Directors and that as Board Members they would have been entitled to participate in control of church property. A similar situation was clearly held by Serbian, supra, not to be included within the property exception to the constitutional prohibition, the court there finding that purely ecclesiastical rules are applicable to the termination of the right to hold a church office and where the control of the property is vested in the holder of the office, disputes concerning the control of the property as related to the office holder could not be resolved in the civil court. Property disputes in these circumstances are ecclesiastical in nature because they are totally involved in the power of the office. Serbian, supra, in discussing this issue made the following statement:

“Resolution of the religious disputes at issue here affects the control of church property in addition to the structure and administration of the American-Canadian Diocese. This is because the Diocesan Bishop controls respondent Monastery of St. Sava and is the principal officer of respondent property-holding corporations. Resolution of the religious dispute over Dionisije’s defrockment therefore determines control of the property. Thus, this case essentially involves not a church property dispute, but a religious dispute the resolution of which under our cases is for ecclesiastical and not civil tribunals” Id., 96 S.Ct. at 2380.

Because we have concluded that all the areas placed in controversy by plaintiffs’ petition involve circumstances where court action would be prohibited by the First Amendment, no useful purpose would be served by taking evidence and having a lengthy trial on the factual allegations contained in plaintiffs’ petition. The trial court made no error in sustaining the defendants’ exception of lack of jurisdiction over the subject matter.

AFFIRMED at appellants’ cost.

      . Subsequent to the Fourteenth Amendment federal jurisprudence has construed the First Amendment as applicable to state action.