text:
    MOBIL OIL CORPORATION, Plaintiff-Appellant, v. James R. CUNNINGHAM, Defendant-Appellee.
    No. 14013.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    Simon, Fitzgerald, Cooke & Reed by Keith M. Welch, Shreveport, for plaintiff-appellant.
    Herold & Geneux by T. Lynn Geneux, Shreveport, for defendant-appellee.
    Before PRICE, HALL and McCLEN-DON, JJ.
   PRICE, Judge.

Plaintiff, judgment creditor of James R. Cunningham, filed a petition for garnishment under a writ of fieri facias citing the Cunningham Family Trust No. 2 as garnishee and alleging the trust was indebted to Cunningham for compensation as trustee under the terms of the trust instrument. Cunningham, as trustee, answered the interrogatories propounded by plaintiff denying that any indebtedness was owed him by the trust. Plaintiff filed a rule to traverse the answers and after trial the district court recalled the rule and denied plaintiff’s demands against the trust. Plaintiff appeals and we affirm.

Cunningham created the Cunningham Family Trust No. 2 in 1976 for the benefit of his children and conveyed certain property to it. The trust instrument named Cunningham as the sole trustee and provided the following regarding his compensation:

The original TRUSTEE hereunder, and all successors trustees, shall be entitled to reasonable compensation for their services as trustees. For purposes of this instrument and its interpretation and application, “reasonable compensation” shall be an aggregate amount equal to ten per cent (10%) of total sums distributed to income beneficiaries pursuant to III (j) above, in the aggregate, on an annual basis plus ten per cent (10%) of profits accruing to TRUST ESTATE, but in no event to be less than one thousand dollars ($1,000.00) per month, per trustee.

The instrument also provided that the trustee is authorized:

. (d) To pay or reserve sufficient funds to pay all expenses of management and administration of the TRUST ESTATE, including reasonable compensation of the TRUSTEE, all or any part of which may, in the TRUSTEE’S discretion be charged either to income or corpus of the TRUST ESTATE.

The evidence indicates the trust has had only a few hundred dollars income since its creation and no distributions have ever been made to any of the beneficiaries. No compensation has ever been paid to or claimed by the trustee and the services he performed in administering the trust were minimal, consisting primarily of depositing the small amounts of income into the trust account and having the proper tax returns prepared and filed.

Plaintiff appeals contending the trial court erred in failing to find the trust indebted to Cunningham. It contends the trust provision is clear and Cunningham is entitled to a minimum fee of $1,000 a month for his services as trustee despite the fact that the trust has made neither profits nor distributions.

The trust contends that under the terms of the compensation provision, the trustee’s fee is to be paid only out of profits and since there have been no profits, no fee is owed. In connection with this contention, it argues that to allow the trustee to collect a fee under the circumstances, where the trust has had almost no income and the services rendered were minimal, would be contrary to the purpose of the trust and a violation of the trustee’s duty to administer the trust solely for the benefit of the beneficiaries. Alternatively, it contends that even if compensation is due under the terms of the trust instrument, the trustee has impliedly waived compensation.

We agree that any compensation due Cunningham under the terms of the trust instrument has been waived. La.R.S. 9:2181 provides that a trustee may waive compensation. Cunningham has been aware of the financial condition of the trust from its inception and has continually rendered a few services necessary for its administration without any claim for compensation. His dealing with the trust in this manner had become well established long before the debt plaintiff seeks to enforce was ever incurred. Under these circumstances we find that his continuing to act as trustee without any attempt to assert his rights under the terms of the trust instrument constituted an implied waiver of those rights and consequently the trial court correctly concluded that no compensation was due.

The judgment is affirmed at appellant’s cost.


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Susan E. BRAXTON, as Provisional Tutrix of the minor children, Brandy Elizabeth Braxton and Floyd Eugene Braxton, II, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION et al., Defendants-Appellees.
    No. 14016.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appel-lee, Walter Kidd Company, Inc.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for defendant-appellee, Southwestern Electric Power Co.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr. and J. D. Collins-worth, Shreveport, for defendants-appel-lees, Georgia-Pacific Corporation, Stovall Farmer, Larry Mann, Pete Ware, Bill Co-mapser, and Preston Wren.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Through their tutrix, the surviving minor children of a decedent who was fatally injured during the course and scope of his employment appeal a judgment dismissing, on an exception of no cause of action, their demands for decedent’s wrongful death under CC 2315 against the decedent’s corporate employer and supervisory and fellow employees.

The lower court sustained the exception on the exclusiveness of the rights and remedies granted by the workmen’s compensation law, LRS 23:1032, which provides in part:

“The rights and remedies herein granted to an employee or his dependent on account of an injury . . . 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 . .”

The tutrix bases her contention of error on the premise that because of the alleged wrongful death of their father, the children have individually and directly sustained damage which is not compensable under the workmen’s compensation law and to which the exclusivity of 23:1032 does not apply.

The tutrix argues that § 1032 bars only the employee’s action which survives on his death, and not the wrongful death action because 1032 expressly states that the rights and remedies which are made exclusive by § 1032 are only the workmen’s compensation rights and remedies “. . .on account of an injury . . . for which he [meaning the employee, the tutrix says] is entitled to compensation . . .”

The tutrix states that it is incumbent that we reconcile CC 2315 with LRS 23:1032, preferably in accord with her analysis, and reverse the result below.

This argument is not unique. The two statutes have been reconciled in several cases and § 1032 has not been interpreted as narrowly as the tutrix would urge, but fairly and in keeping with its spirit and patent intent as regards the whole fabric of the law in this area of rights and liabilities in death actions.

• Collateral heirs not dependent upon the decedent, who was fatally injured during the course and scope of his employment, have no individual cause of action for wrongful death under CC 2315 against the decedent’s employer. Atchinson v. May, 201 La. 1003, 10 So.2d 785 (1942).

Parents, even though not dependent upon their deceased son and not entitled to workmen’s compensation death benefits, were held not to be entitled to recover under CC 2315 against the supervisory or fellow employees of their son who was fatally injured during the course and scope of his employment. Shepard v. Louisiana Power & Light Co., Inc., 369 So.2d 1196 (La.App. 2d Cir. 1979), writ refused; Flynn v. Devore, 373 So.2d 580 (La.App. 3d Cir. 1979).

Thus even though the injury is not compensable under the workmen’s compensation statute, (where relations who are designated under CC 2315 are not dependent upon the decedent), the exclusivity bar of 23:1032 still applies to a wrongful death claim against either the employer (Atchin-son, 1942) or, since the 1976 amendment to 23:1032, the supervisory or fellow employees of the decedent (Shepard, 1979).

To paraphrase Atchinson, the intent of the Legislature is clear in circumstances where an employee suffers an injury or fatal injury during the course and scope of his employment, that the remedy of the employee or of his relations under CC Art. 2315, is governed exclusively by the workmen’s compensation law, whether the claim is asserted by the employee or by his relations and whether the claim is asserted against the employer or against the decedent’s supervisory or fellow employees. See 10 So.2d at p. 787.

“Section 34 of the Act [LSA-R.S. 23:1032] provides that the compensation remedy is exclusive of all other rights of the employee’s personal representative, his dependents or his relations. Accordingly our courts have held the compensation provided for a dependent member of the family is all that the dependent can recover upon the death of the worker. The objection that the above provision is a denial of due process of law as against non-consenting third persons has been effectively answered. The right to tort damages for wrongful death did not exist at common law or in Louisiana until it was conferred by statute. Since it is a creature of the legislature, it is subject to legislative repeal.
“Where the tort plaintiff is not entitled to compensation under the terms of the Act (because, for example, dependency cannot be established) yet the same individual would be a proper claimant under Article 2315 of the Civil Code (which makes no mention of dependency), the problem is more difficult. The Louisiana Supreme Court has held that the tort rights of a non-dependent relative are extinguished by the Compensation Act even though there was no dependent relative to claim compensation. This conclusion seems justified under the language of Section 34. Furthermore, the position of the court is in accord with the idea that the Act contemplates as a reciprocal yielding by all parties affected in order to make possible the enlarged benefits provided for those whose need is greatest. A holding to the contrary would lead to the anomalous situation in which a non-dependent relative would receive a much larger award than one who was dependent and whose claim, therefore, was limited to compensation as provided in the Act.” Malone, Louisiana Workmen’s Compensation Law and Practice, § 363, pp. 468-469. Footnotes omitted.

What the Legislature has granted, it can take away in whole or in part.

When § 1032 in its entirety is read with the other sections of the workmen’s compensation law and in light of its well documented policy, the pronoun he cannot simply refer to the employee, but to the employee or his dependent. See CC Art. 18; Johnson v. Sewerage District No. 2 of Parish of Caddo, 239 La. 840, 120 So.2d 262 (1960).

“The rights and remedies herein granted to an employee or his dependent on account of an injury . . . for which he [an employee or his dependent] is entitled to compensation . . . shall be exclusive of all other rights and remedies of such employee, his . . . dependents, or relations against his employer, or . employee of such employer for said injury . . .” Emphasis added.

If the argument of the tutrix is accepted, some designated relations not dependent upon the decedent-employee would not be barred from asserting a wrongful death claim even against the employer. Such a result was not and is not what the Legislature intended by the workmen’s compensation law.

With respect to the employment relationships governed by the workmen’s compensation law, the Legislature, by the 1976 amendment to § 1032, intended to take away any claim for damages under CC 2315 by the employee’s designated relations against the supervisory and fellow employees of the employee even though the damages are individually sustained by the designated relations and not the decedent employee. See Flynn at p. 584.

Judgment below, at the cost of appellant, is AFFIRMED.

      . Cases have recognized that recovery may be had for the damages suffered by the decedent himself before death (the survival of his action) as well as for the damages certain designated relations individually and directly suffer as a result of the death (the wrongful death action). See Guidry v. Theriot, 377 So.2d 319 (La.1979); Callais v. Allstate Insurance Co., 334 So.2d 692 (La.1976); King v. Cancienne, 316 So.2d 366 (La.1975); Whittington v. Hopfensitz, 321 So.2d 836 (La.App. 1st Cir. 1975); Moore v. Kinney, 315 So.2d 340 (La.App. 3d Cir. 1975).


author: JONES, Judge.

text:
    James M. MOORE, Plaintiff-Appellee, v. Tammie L. MOORE, Defendant-Appellant.
    No. 14023.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    Neil Martin Trichel, Shreveport, for plaintiff-appellee.
    R. Clyde Láwton, Jr., Vivian, for defendant-appellant.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Tammie Moore, mother and plaintiff-in-rule, appeals a judgment sustaining an exception of lack of jurisdiction over the subject matter to her rule seeking a reduction of the father’s visitation privileges and an increase in child support contained in a New Mexico divorce judgment. This exception was filed by James Moore, father and defendant-in-rule.

The October 18,1978 New Mexico divorce judgment awarded custody of the three year old child born of the marriage to the mother and gave the father visitation privileges for three months each summer, every Thanksgiving and Easter, and one-half of the Christmas vacation. The judgment ordered the father to pay $95.00 per month child support. The mother filed in March, 1979 a rule to show cause why the visitation should not be reduced and the child support increased to $200.00 per month. The trial judge dismissed the rule because he found that under the Uniform Child Custody Jurisdiction Act (L.R.S. 13:1700, et seq.), hereinafter referred to as the UCCJ Act, the Louisiana court lacked jurisdiction to modify the New Mexico judgment.

The mother had left the matrimonial domicile in New Mexico with the child in July, 1978 and established a domicile with her mother in Louisiana. The child and mother had lived in Louisiana for a period of eight months at the time she filed the rule to modify the New Mexico judgment.

After a trial on the visitation and support issues the trial judge sustained the exception of jurisdiction.

The issues are (1) whether the UCCJ Act denies jurisdiction to a Louisiana court over this matter, and (2) if there is jurisdiction whether this court should change the visitation provisions and increase the child support.

The UCCJ Act went into effect on October 1, 1978. The general purposes of the Act are to avoid jurisdictional disputes with courts of other states in matters of child custody and to assure that child custody litigation takes place in the state with the closest connection to and most substantial evidence about the child and its family. LSA-R.S. 13:1700(A). The basic goals of the Act do not appear to vitiate completely the broad grant of jurisdiction by LSA-C. C.P. Art. 10(A)(5) over the status of the custody of a minor who is domiciled in, or is in, this state except in certain particular circumstances. See LSA-R.S. 13:1705 (simultaneous proceedings in other states); 13:1706 (forum non conveniens); 13:1707 (jurisdiction declined because of a wrongful taking of the child); and 13:1713 (no modification of another state’s custody decree unless the other state no longer has jurisdiction or has declined jurisdiction). The Oregon Supreme Court in Settle v. Settle, 276 Or. 759, 770, 556 P.2d 962, 968 (1976), makes the following observation concerning the purpose of the UCCJ Act which had been adopted by Oregon:

“A close reading of the Act discloses a schizophrenic attempt to bring about an orderly system of decision and at the same time to protect the best interests of the children who may be immediately before the court. When put to the test of a factual situation presenting an irreconcilable conflict between those two interests, we read the Act as making predominant the best interests of the children before the court.”

Considering the Act’s overriding concern with the best interests of the child now presently before the court, we find it does not deny jurisdiction to the Louisiana court but rather mandates its exercise of jurisdiction over this cause.

Louisiana has traditionally exercised its jurisdiction over the status of minors present in the state regardless of the method of their arrival here. See State ex rel. Girtman v. Ricketson, 221 La. 691, 60 So.2d 88 (1952), which holds that a Louisiana court has jurisdiction over a minor in order to determine his legal custody when the minor is domiciled in, or is in, Louisiana. The jurisprudence has interpreted the pro.visions of the later Art. 10(A)(5) of the Code of Civil Procedure to mean that mere physical presence without more and without regard to the means used to achieve such presence suffices to give a Louisiana court power to decide the custody of a minor. Jones v. Larkins, 347 So.2d 508 (La.App.4th Cir. 1977); Lucas v. Lucas, 195 So.2d 771 (La.App.3d Cir. 1966); Rafferty v. Rafferty, 313 So.2d 356 (La.App.4th Cir.1975); Miller v. Miller, 363 So.2d 724 (La.App.2d Cir. 1978). Even after the UCCJ Act had gone into effect, at least one Louisiana appellate court has without discussing the new Act ruled that on the basis of LSA — C.C.P. Art. 10(A)(5) a Louisiana court had jurisdiction to determine if a Virginia custody decree should be modified. Folsom v. Folsom, 372 So.2d 769 (La.App.4th Cir. 1979). Here the trial court determined the question of custody of three minors, all of whom were domiciled in Virginia, but two of whom were present in Louisiana, and one of whom was still in Virginia. The Fourth Circuit held that as to the custody determination of the child in Virginia, the trial court was without jurisdiction (basing its decision on LSA-C.C.P. Art. 10(A)(5) and Rafferty and Jones, supra.) Without considering the UCCJ Act the Fourth Circuit affirmed on the merits the trial court’s decision to allow custody to remain with the mother of one of the boys who was domiciled in Virginia but was present in Louisiana. By affirming on the merits the court necessarily determined that the trial court did have jurisdiction to decide the child’s custody because of Article 10(A)(5), Rafferty and Jones.

The broad custody jurisdiction granted by Art. 10(A)(5) appears to be not substantially diminished by passage of the UCCJ Act. However, it is clear from the general goals of the Act that mere physical presence without more should not now suffice to give a Louisiana court jurisdiction either to determine custody or modify a foreign custody decree. In order for a Louisiana court to have jurisdiction the home state test of R.S. 13:1702(A)(1) must be met or the best interest of the child test of 1702(A)(2) must be satisfied. Since the minimal requirement of physical presence has led to the very child-snatching incidents which the Act seeks to prevent, the goals of the Act, plus its jurisdictional requirements ensure that mere presence of the minor in Louisiana without more will not be enough to give a Louisiana court power to determine the custody of that minor. For a good discussion of this change in Louisiana custody jurisdiction and of the Act in general see Ann Lastilla’s article in 39 Law Review, 107, Legislative Symposium, pp. 107-121.

The issue is does Louisiana have jurisdiction to modify the custody decree of New Mexico?

Under R.S. 13-1702(A)(1) of the Act, Louisiana is competent to make a child custody determination by modification because Louisiana was the child’s home state at the time of commencement of the proceeding, March, 1979. “Home state” is defined in § 1701(5) as being “the state in which the child immediately preceding the time involved lived with ... a parent . for at least six consecutive months . .” At the time the mother instituted these proceedings she and the child had been residing in Louisiana for eight months.

Since Louisiana has jurisdiction, the question then becomes whether Louisiana is precluded from exercising its jurisdiction for the purpose of modifying the New Mexico judgment.

Section 13:1713(A) deals with the modification of a custody decree of another state and provides as follows:

“If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Part or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction.”

Before Louisiana can exercise jurisdiction to modify the New Mexico custody decree, Louisiana must determine that New Mexico no longer has jurisdiction or has declined to exercise jurisdiction. As discussed in the comments to this section in Uniform Laws Annotated, Vol. 9, § 14, all petitions for modification should be made to the prior state as long as that state still has sufficient contact with the case to satisfy the jurisdictional requirements of the Act (§ 1702). In order to determine if Louisiana is precluded from exercising jurisdiction, it must be determined if New Mexico has jurisdiction under § 1702.

Since Louisiana and not New Mexico is now the child’s home state New Mexico does not have jurisdiction under § 1702(A)(1). Under § 1702(A)(2) New Mexico has jurisdiction if it meets the test of the child’s best interests. This section requires that for the best interest test to be met New Mexico must have “a significant connection” with the child and at least one parent and have available “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships”. The inquiries which must be made to determine if New Mexico no longer has jurisdiction are related solely to the issues “significant connection” and “substantial evidence”.

Connections which the minor has with the state of New Mexico are (1) her father resides there, and (2) the child previously resided there eight months ago. We do not consider these factors alone sufficient to meet “significant connection” requirements. The only evidence available in New Mexico is that which the father may provide. The child resides with her mother and maternal grandmother and other relatives in the City of Shreveport and has been here for almost one-third of her life. Under these circumstances by far the great majority of evidence concerning this child necessarily must be available only in Shreveport, Louisiana. It' therefore is evident that New Mexico is not the state where “substantial evidence” as to the welfare of the child is available. As stated in the Commissioner’s comment to the jurisdictional article in Uniform Laws Annotated, Vol. 9, § 3:

“The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state. The submission of the parties to a forum, perhaps for purposes of divorce, is not sufficient without additional factors establishing closer ties with the state. Divorce jurisdiction does not necessarily include custody jurisdiction.” Id. at 124.

The maximum contact intended by § 1702(A)(2) is not present between the state of New Mexico and the child in this case. Therefore, since New Mexico does not have sufficient contact with the child to satisfy the jurisdictional requirements of § 1702(A)(1) or (2), the prohibition of § 1713(A) against modification of the custody decree of another state is removed. Louisiana by virtue of its status as the child’s home state [§ 1701(5)] is empowered to modify this New Mexico custody decree [§ 1702(A)(1)],

As we found no Louisiana cases construing the UCCJ Act, we were aided in our conclusions by considering the rationale of decisions of other jurisdictions which have interpreted the Uniform Child Custody Jurisdiction Act.

Baird v. Baird, 374 So.2d 60 (Fla.App.3d Dist. 1979), involved the similar issue of whether Florida has jurisdiction under the Act to modify an Arizona custody decree. Both the mother, who had been granted custody, and the child lived in Florida while the father still resided in Arizona, the former matrimonial domicile. The Act did not deny subject matter jurisdiction to Florida, but rather raised a question as to the propriety of its exercise of that jurisdiction. The Florida court found that their § 61.-1328, Florida Statutes 1977 (our R.S. 13:1713) did not require Florida to decline jurisdiction because the mother and child had left Arizona and were now domiciled in Florida.

The Florida case of Hofer v. Agner, 373 So.2d 48 (Fla.App.1st Dist. 1979), applied the best interest test of our § 1702(A)(2) and found that although the children were presently domiciled in New Jersey with their mother under a valid Florida custody decree, the Florida court had significant connection with and substantial evidence about the children and was thus empowered to modify the decree when two of the children were presently before the Florida court.

The Oregon case of Settle v. Settle, supra, dealt with the issue of whether Oregon could modify an Indiana custody decree. The Indiana decree awarded custody to the father who lived in Indiana. The mother and children were domiciled in Oregon. The father sued in Oregon to enforce the Indiana decree and the issues were (1) did Oregon have jurisdiction to modify the Indiana decree? and (2) if so, should Oregon exercise this jurisdiction? Oregon, as the child’s home state, had jurisdiction to modify. The Oregon court held that the prohibitory modification Article (our § 1713) did not apply because Indiana no longer had jurisdiction because it was neither the home state nor did it have significant connection with the child, nor was “substantial evidence” concerning the children available in Indiana. Indiana did not have the optimum access to relevant evidence as required by the Act and so the home state, Oregon, rather than the rendering state now had power to determine the child’s custody.

When the rendering state remains either the home state or maintains both a significant connection with and substantial evidence about the child, courts in states whose legislatures have adopted the UCCJ Act have not hesitated to defer to this continuing jurisdiction. See Brown v. Distr. Court In and For City and County of Denver, 557 P.2d 384 (Colo.1976), in which the Colorado Supreme Court held that even though the mother and child were domiciled in Colorado, a Colorado court was without power to hear the mother’s suit to modify the Missouri custody decree because Missouri retained continuing jurisdiction under the prerequisites of the Act. The mother’s suit was filed two months after she and the-child had moved from Missouri to Colorado and only three weeks after the rendition of the Missouri custody decree. See , also Fry v. Ball, 544 P.2d 402 (Colo.1975), wherein a California court which rendered a custody decree in favor of a paternal grandmother was held to have retained continuing jurisdiction over the legal custody of a child living in Colorado with his grandmother when both parents resided in California.

Louisiana has jurisdiction of this cause because Louisiana is the home state of the child. New Mexico no longer has jurisdiction because it is neither the home state, nor does it have significant connections with and substantial evidence about the child. Louisiana is therefore not bound under R.S. 13:1713(A) to forsake modification of the New Mexico custody judgment.

The UCCJ Act is inapplicable to the issue of child support, R.S. 13:1701(2), and for this reason there can be no question that the trial court was not precluded from modifying the New Mexico judgment with relation to the amount of child support the father was required to pay.

We REVERSE the judgment sustaining the exception of jurisdiction and because the trial court should have an' opportunity to exercise its discretion on the issue of modification of visitation rights and upon the request for an increase in the child support, we REMAND the case to the trial court for consideration on the merits.

All costs are assessed against appellee.

      . C.C.P. Art 10(A) — “A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
      (5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;. . ."

      .LSA-R.S. 13:1702(A) — “A court of this state which is competent to decide child custody matters had jurisdiction to make a child custody determination by initial or modification decree if:
      (1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

      . (2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or . .

      . R.S. 13:1702(A)(3) and (4) provide the other two grounds for jurisdiction (abandonment or emergency plus physical presence and lack of any other state to exercise jurisdiction) and are not applicable to this case.


author: HALL, Judge.

text:
    Harry Dudley BEAL, Plaintiff-Appellee, v. WILLARD MOORE MARINA, INC., Pioneer Bank & Trust Company, Intervenor-Appellant.
    No. 14024.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.

      Bodenheimer, Jones, Klotz & Simmons, by James P. Bodenheimer, Shreveport, for intervenor-appellant, Pioneer Bank & Trust Co.
    Pringle & Herzog, by R. Perry Pringle and John R. Herzog, Shreveport, for plaintiff-appellee, Harry Dudley Beal.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff, Harry Dudley Beal, filed a petition to foreclose by executory process on several chattel mortgages executed by the defendant, Willard Moore Marina, Inc., including two chattel mortgages dated February 13, 1976 purporting to cover and affect masses and assemblages of things located at the defendant’s business address in Shreveport. Pioneer Bank & Trust Company filed a petition of intervention seeking to have its mortgage, dated June 26, 1978, executed by the defendant, covering all the inventory and stock of merchandise of the defendant located at the same address, recognized as a first mortgage affecting the property described therein. After trial the district court rejected the intervenor’s demands and the intervenor appealed.

On appeal intervenor contends that the trial court erred in not recognizing its mortgage as a first mortgage affecting the defendant’s stock of merchandise. Intervenor contends that plaintiff’s chattel mortgages are not effective as mortgages of masses or assemblages of things or of stocks of merchandise so as to attach to after-acquired additions to the original stock of goods as provided in LSA-R.S. 9:5351 because the mortgages do not describe the mortgaged property as “all of a particular class or classes or grade or kind or type or species or dimensions or as a stock of merchandise to be kept at a certain location” as required by LSA-R.S. 9:5352A. Intervenor contends that plaintiff’s mortgages should be given effect only as to the specific items listed therein which can be identified and that, otherwise, intervenor’s mortgage should be given effect as a first mortgage affecting defendant’s inventory and stock of merchandise.

Plaintiff’s mortgages described the mortgaged property as follows:

“The property described in Exhibit ‘A’ which is annexed hereto and made a part hereof for all purposes.
“Said property is now and shall remain located at 1550 Cross Lake Boulevard, Shreveport, Louisiana.
“It being intended, in accordance with R.S. 9:5351 that the lien of this mortgage shall cease as to all of such property disposed of by the mortgagor in the ordinary course of business up to the time of foreclosure, but shall attach to the purchases made by mortgagor to supply and replace such property disposed of and to other after acquired additions to said masses or assemblages of the property as described in Exhibit ‘A’.”

Exhibit “A” attached to one mortgage contains several headings: “BOATS”, “TRAILERS”, “MOTORS”, “USED BOATS, MOTORS, AND TRAILERS” an<j “TROLLING MOTORS”. A number of specific items with serial numbers are listed under each heading. Exhibit “A” attached to the other mortgage contains the heading “Accessories” followed by a long list of specific marine accessories.

Intervenor’s mortgage, about which no question is raised as to the description, covers all the masses or assemblages of inventory of stocks of merchandise including, but not limited to, fishing gear, tackles, bait, skis, life jackets, motor oil, and other necessities, and conveniences used in water sports of any nature and any other assorted or associated items used in the overall operation and owned by mortgagor.

LSA — R.S. 9:5351 authorizes the mortgaging of masses or assemblages of things including stocks of merchandise or other things in bulk, but changing in specifics, and provides that the effect of the mortgage shall cease as to all articles disposed of by the mortgagor up to the time of foreclosure but shall attach to the purchases made to supply their place and to other after-acquired additions to the original stock of goods, merchandise, or other things in bulk originally mortgaged to secure the debt. LSA — R.S. 9:5352A provides that a chattel mortgage granted on any mass or assemblage of things including stocks of merchandise shall describe the same as all of a particular class or classes or grade or kind or type or species or dimensions or as a stock of merchandise to be kept at a certain location.

Plaintiff’s mortgages, do not describe the property as inventory or stocks of merchandise. The mortgages are not, therefore, necessarily effective as to defendant’s entire stock of merchandise, regardless of nature or kind, as was the case in Arenson International, Inc. v. Shelving Systems Corp., et al., 369 So.2d 1212 (La.App. 2d Cir. 1979) where the mortgage specifically covered the mortgagor’s “inventory”.

The mortgages do, however, refer specifically to “masses and assemblages” of property and to the applicability of the mortgages to after-acquired additions to the masses and assemblages of property as provided in LSA-R.S. 9:5351. The mortgages also describe particular kinds or types of property, namely: boats, trailers, motors, used boats, motors, and trailers, trolling motors and accessories. In these respects the description contained in the mortgages involved in this case is distinguishable from those involved in All State Credit Plan Houma, Inc. v. Fournier, 175 So.2d 707 (La. App. 1st Cir. 1965); and Ideal Loan of New Orleans, Inc. v. Johnson, 218 So.2d 634 (La. App. 4th Cir. 1969), relied on by intervenor, whére the mortgages only described specific items and not kinds or types of items.

The mortgages in question here comply with the requirements of the statutes for the mortgage of masses and assemblages of things, but changing in specifics. As to the described types and kinds of masses or assemblages of property, plaintiff’s mortgages are effective and attach to purchases made to replace such types and kinds of property originally mortgaged. As to these types and kinds of property intervenor’s mortgage, executed and recorded subsequent to plaintiff’s mortgages, is inferior to plaintiff’s mortgages.

The record does not reflect whether any of the property presently located at the defendant’s premises which has been seized pursuant to plaintiff’s petition for executo-ry process is of a type or kind other than described in plaintiff’s mortgages. Since plaintiff’s mortgages do not necessarily cover all of defendant’s stock of merchandise and since intervenor’s mortgage clearly does, the judgment of the district court rejecting intervenor’s demands in toto is too broad and should be recast.

Plaintiff’s alternate contention that in-tervenor’s actual knowledge of the existence of plaintiff’s mortgages cures any defects therein is without merit. The issue here is not notice or knowledge, either actual or constructive through' recordation; the issue is what property is affected by the mortgages under the provisions of the mortgages and applicable law.

A further alternate contention of plaintiff is that intervenor’s mortgage is ineffective because it does not contain the caption “Collateral Chattel Mortgage” as required by LSA — R.S. 9:5352B. This contention is also without merit because there is nothing in intervenor’s mortgage or in the record to indicate that intervenor’s mortgage was to be used to secure future advances, a prerequisite to the requirement contained in LSA-R.S. 9:5352B.

For the reasons assigned, the judgment of the district court is recast as follows: It is ordered, adjudged, and decreed that as between plaintiff, Harry Dudley Beal, and intervenor, Pioneer Bank & Trust Company, the chattel mortgages held by plaintiff dated February 13,1976, recorded February 17, 1976, under Registry Nos. 537130 and 537131 are superior to and prime the chattel mortgage held by intervenor dated June 26, 1978, recorded June 27, 1978, under Registry No. 600250, as to all of the masses and assemblages of boats, trailers, motors, used boats, motors, and trailers, trolling motors, and accessories owned by the defendant, Willard Moore Marina, Inc., on the date of foreclosure, September 28, 1978, located at 1550 Cross Lake Boulevard, Shreveport, Louisiana. It is further ordered, adjudged, and decreed that the said mortgage held by intervenor is superior to and primes the said mortgages held by plaintiff as to any other types and kinds of the mass and assemblage of stock of merchandise of the defendant located at said premises. This action is remanded to the district court for further proceedings in accordance with this opinion and in accordance with law. All costs of this proceeding, including the cost of appeal, are assessed to the intervenor, Pioneer Bank & Trust Company.


author: McClendon, Judge.

text:
    Jack Benny SHOALMIRE, Plaintiff-Appellant, v. Rebecca Jane Phillips SHOALMIRE, Defendant-Appellee.
    No. 14025.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    James E. Bookter, Bossier City, for plaintiff-appellant.
    James E. Franklin, Jr., Shreveport, for defendant-appellee.
    Before PRICE, C. J., and HALL and McClendon, jj.
   McClendon, Judge.

Jack Benny Shoalmire appealed from a judgment on rule increasing child support due by him for his 9-year-old daughter to $300 per month from the $100 fixed, with the consent of the parties, in the original separation judgment some seven years earlier (August 2, 1972), and continued in the divorce judgment of February 5, 1975.

The appeal is based upon contentions that the trial court erred by failing to consider the actual monthly expenses of the child and the totality of circumstances surrounding the actual income of the parties, thereby abusing its discretion.

We find to the contrary that no abuse of discretion occurred, and affirm the trial court.

The father had remarried and his income had increased from about $20,000 in 1972 to an annual gross of over $36,000. His present wife was also employed, grossing about $15,000 annually. Mr. Shoalmire’s annual net income amounted to Í103.58 and the couple’s combined net to $32,238.96. They have no children or other dependents in their $36,000 home in Tulsa, Oklahoma. They each have a new motor vehicle and own two motorcycles; have savings in a credit union, forty shares of Ford Motor Company stock, and a monthly surplus of $620 after expenses are deducted from their combined income.

Appellee, on the other hand, has a gross monthly income from her employment of $775.00 and a net of $598.65, or $7,183.80 annually. This is an increase from her 1972 income of $350 per month. The present income is from her employment in a Baton Rouge, Louisiana, bank. She was earning a gross of only $600 per month for two years until May of 1978 when she began her present employment at $650 and had been increased in that interval to the $775 per month. Her financial difficulties through the years following the 1972 separation judgment were evidenced by a bankruptcy taken in 1976. This bankruptcy resulted in the loss of the home she received in the property settlement following her divorce from appellant. She lives in a two bedroom flat with the child of her marriage to appellant and an 11-year-old son of a former marriage, for whom she receives no support from his father. She drives a 1972 Volkswagen which is not paid for.

The child, Rebecca, has a kidney-bladder problem that requires continuing medication and periodic medical examination by a urologist. Additionally, she has a learning problem which requires tutoring. Appellant paid $24 per week for this tutoring for a limited time after the divorce, but discontinued these payments on advice of his attorney.

Even if the income of appellant’s present wife is not considered, as his counsel argues, because they reside in Oklahoma, not a community property state, we agree with the trial court’s obvious conclusion that the totality of the circumstances not only shows a change more than mere inflation, but well justifying the increase awarded.

We find no abuse of the trial court’s discretion, affirm the decision, and order that appellant pay the costs of this appeal.


text:
    Betty Jean SIMPSON, Plaintiff-Appellee, v. S. S. KRESGE COMPANY d/b/a K Mart Discount Store # 3019, Defendant-Appellant.
    No. 14026.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc Rehearing Denied Feb. 29, 1980.

      Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendant-appellant.
    Donald R. Miller, Shreveport, for plaintiff-appellee.
    Norman R. Gordon, A Professional Law Corp. by Norman R. Gordon and Jack M. Bailey, Jr., Shreveport, for intervenor-ap-pellee.
    Before PRICE, HALL and McCLEN-DON, JJ.
   McClendon, Judge.

The trial court found plaintiff was partially and permanently disabled and that there was a partial and permanent disability of the body as a whole in the amount of 15% following back surgery necessitated by an accident stipulated by plaintiff and defendant to be within the meaning of the Workmen’s Compensation Act and for which plaintiff had received a stipulated total of $5,920.20 in weekly compensation before trial.

Plaintiff was employed as department head at K Mart Discount Store in the domestics section where curtains, curtain rods, hardware, towels, sheets, etc., are displayed and sold at the time of the accident on May 26, 1977. She had worked first in the cafeteria and was transferred to domestics where she was first a sales person and later promoted to department head.

Her duties consisted of supervising sales personnel in her department and working primarily in the curtains section herself, where she priced curtains and rods, took them from the stockroom and put them up. This required stooping, bending and lifting, but no significantly heavy lifting.

After back surgery in late July of 1977, which required hospitalization for approximately six days, plaintiff was treated by Dr. Don H. Burt, orthopedic surgeon, who had performed the surgery, until December 1, 1977, when he discharged her as able to return to work.

Plaintiff did not return to work and testified she was still unable to work even at time of trial on April 10, 1979.

The testimony of plaintiff’s parents and her husband concerning her inability to work was in the nature of conclusions with minimal or no stated observations from which the conclusions were or could have been logically drawn.

The fellow employees’ testimony (three in number) was corroborative of the nature of her duties before her injury but not of the extent of disability after surgery.

From the deposition of Dr. Burt, the treating orthopedist, it is clear he felt plaintiff was able to return to her former employment as early as December 1, 1977, and the 15% “partial permanent disability” he gave her was an “anatomical” rather than “functional” disability arising as a direct result of the surgery which left plaintiff less than whole anatomically.

Dr. Baer I. Rambach, another orthopedic surgeon, examined plaintiff on August 28, 1978; concurred with Dr. Burt’s opinion that plaintiff’s partial disability was anatomical rather than functional; and differed only in amount (10% vs. 15%). Plaintiff was in the latter stages of pregnancy at the time Dr. Rambach examined her, but he had no difficulty concluding that she could return to her former employment after the child was born and plaintiff recovered from that. Both Dr. Rambach and Dr. Burt agreed that this young lady was grossly overweight. She was 5' 3" tall and weighed 190 pounds.

Plaintiff was pregnant at the time Dr. Bennett Young, orthopedic surgeon, examined her on February 20, 1978, and saw her on April 6, 1978, and the only indication of his findings located in the record is an undated report to an attorney following the April visit, in which he stated he was “unable to demonstrate any evidence of lumbar disc pathology in this patient” and desired to defer further diagnostic treatment until X-rays could be done after “she delivers her pregnancy.”

When both the medical and lay evidence concerning this plaintiff’s disability are examined, as mandated by Tantillo v. Liberty Mutual Insurance Co., et al., 315 So.2d 743 (La.1975), it is clear that she was capable of performing the duties of her former employment after December 1, 1977, and therefore is neither totally nor partially disabled.

In view of our conclusions herein, no purpose would be served by reviewing the problems presented by the 1975 amendments to La.R.S. 23:1221(1), (2) and (3) as discussed in the three recent cases from the First Circuit, except to say that we have no difficulty distinguishing factually the present case from the Barksdale case cited and apparently relied upon by the trial court.

In passing it is noted that the other case cited in the trial court’s opinion [McMiller v. New Orleans Public Service, Inc., 367 So.2d 1354 (La.App. 4th Cir. 1979)] involved an injury which occurred prior to the 1975 amendment to R.S. 23:1221, by which the definitions of permanent total, temporary total, and partial disability were substantially changed.

This court has no way of ascertaining why this 26 year old female has chosen not to “engage in any gainful occupation for wages” since being discharged by her treating physician, but it can only conclude that the evidence presented in the trial court was insufficient to establish that the choice was founded upon an established and proven physical disability.

Therefore, the judgment of the trial court is reversed. Appellee shall pay all court costs, including costs of this appeal.

      . LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir. 1977); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); Barksdale v. Southern Airways, Inc., 365 So.2d 493 (La.App. 1st Cir. 1978).


text:
    Jerry CURRY et ux., Plaintiffs-Appellants, v. Joe BAGWELL, Defendant-Appellee.
    No. 14028.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc Rehearing Denied Feb. 29, 1980.

      Baker, Culpepper & Brunson by J. Michael McDonald, Jonesboro, for plaintiffs-appellants.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appel-lee.
    Before PRICE, HALL and JONES, JJ.

       Marvin and McClendon, JJ., recused.

   HALL, Judge.

This is a suit for damages for the wrongful death of Fred Douglas Curry who was fatally shot during an altercation at the Truckers Paradise Cafe. The plaintiffs are the parents of the deceased. The defendant is Joe Bagwell, owner and operator of the cafe. After trial on the merits the district court found that the only issue to be determined was whether the force used by Bag-well to repel the aggressive actions of Curry was reasonable under the circumstances of the case. The court found that the use of deadly force by the defendant was justified and reasonable under the circumstances, and rendered judgment dismissing the plaintiffs’ suit. On the plaintiffs’ appeal, we affirm.

After midnight, October 2, 1971, Curry, a 175-pound, 19-year-old black man, in the company of several friends, entered Truckers Paradise Cafe, an all-night cafe located on 1 — 20 east of Minden, Louisiana. There were a number of customers in the cafe at the time. Three of the men, Curry, Curtis Judgeware, and Judge Hill, III, sat down at the counter while the fourth placed himself at a table nearby. All of the men had obviously been drinking and the deceased was intoxicated. Curry made insulting and abusive remarks to a waitress, who, upset by these comments and fearful for her safety, told defendant about the remarks, and indicated she might need some help. Defendant a 150-pound man in his late forties who had only recently been released from the hospital following an operation removing a goiter from his neck, walked over to the counter where Curry and his friends were sitting. Curry and his friends quieted down, so defendant returned to his station at the cash register. After finishing their meal the men went to the cash register to pay their bills. Judgeware wished to pay for Curry’s meal and had it placed on his ticket. As Judgeware was paying the bill Curry interrupted and insisted he was paying too much. Bagwell attempted to explain that Judgeware was paying for two meals. Words were exchanged for a few moments and suddenly Curry attempted to grab the bill out of Bagwell’s hand. The defendant immediately snatched his hand away. Curry than lunged across the counter that separated him from Bagwell and grabbed the defendant by the throat. The defendant pulled a tear gas pistol from his pocket and fired it a disputed number of times, probably twice, into Curry’s face. This did not stop the deceased who proceeded to wrestle Bagwell to the floor. As the men went to the floor or after they were on the floor, Bagwell pulled a .25 caliber pistol from his pocket and fired one shot, striking the deceased in the side and causing a wound which resulted in his eventual death. Defendant got out from under Curry and, not knowing whether he had hit Curry, fired at him again with the tear gas gun. When it was realized that Curry had been shot, the sheriff’s department and an ambulance were called. ■ Curry died on the way to the hospital.

Judgeware and Hill, testifying for plaintiffs, testified contrary to the facts recited above in several material respects. However, the trial court correctly gave little weight to their testimony, particularly that of Hill, because of substantial discrepancies between their testimony and statements given to the sheriff’s department the day after the shooting. The facts as recited above are established by the testimony of Bagwell, his wife, the waitress, and two customers who were in the cafe at the time of the incident.

Appellants readily admit that Curry was the aggressor in this altercation but contend that the defendant used excessive force in repelling the aggression of the plaintiff. The law is well settled that even where there is an aggressive act on the part of the plaintiff justifying a battery, the person retaliating may use only so much force as is necessary to repel the aggression. If he goes beyond this and uses force in excess of what would have been reasonably necessary, he is liable for damages for injury caused by the use of such unnecessary force. Oakes v. H. Weil Baking Co., et al., 174 La. 770, 141 So. 456 (1932); Davis v. Marie, 339 So.2d 370 (La.App. 1st Cir. 1976), writ refused La., 341 So.2d 5 (1977); Bauman v. Heausler, 188 So.2d 189 (La.App. 4th Cir. 1966); Mut v. Roy, 185 So.2d 639 (La. App. 1st Cir. 1966); Whittington v. Levy, 184 So.2d 577 (La.App. 4th Cir. 1966). In determining what force is justified in repelling an attack all facts and circumstances at the scene of the incident must be considered. Babineaux v. Pernie Bailey Drilling Company, 335 So.2d 747 (La.App. 3d Cir. 1976). The yardstick of the reasonable, prudent man is, generally speaking, the judicial tool used to measure whether the force used to repel attack was excessive. Wilson v. Dimitri, 138 So.2d 618 (La.App. 4th Cir. 1962). Resort to the use of a dangerous weapon in order to repel an attack on one’s person cannot be countenanced as justifiable save in exceptional cases where the actor’s fear of danger is not only genuine but is founded on facts which would likely produce similar emotions in men of reasonable prudence. Davis v. Marie, supra; Mullins v. Pence, 290 So.2d 803 (La.App. 1st Cir. 1974), writ refused, La., 294 So.2d 547 (1974).

The trial judge found that in this case, “ . . . while not exactly on all fours with Mullins v. Pence, . . . the evidence adduced is very similar. In the case at hand, the Court finds that Fred Curry was in fact the aggressor; that his physical size was slightly larger than that of Joe Bagwell; that Joe Bagwell was recovering from surgery; and that despite being shot in the face with tear gas, Mr. Curry continued his aggression; and that Mr. Bagwell could in fact reasonably fear great bodily harm. For these reasons, the Court finds that the use of deadly force by Mr. Joe Bagwell under the circumstances as shown by the evidence, was justified and reasonable.”

We agree with the trial judge’s finding and find great similarity between the case cited and the case at hand. In Mullins the plaintiff, a boilermaker, was 6-feet tall and weighed approximately 215 pounds, while the defendant was approximately 5'4", weighed 145 pounds, and was crippled with one leg being approximately five inches shorter than the other. The plaintiff threatened to tear off the defendant’s arm and began climbing over the bar after him. The defendant shot plaintiff but plaintiff continued his advancement and the defendant fired four more shots from a .32 caliber pistol into plaintiff. The court concluded the defendant was justified in using the force he did to repel the aggression of the plaintiff.

In the present case the evidence supports defendant’s claim that he fired a tear gas pistol into the face of Curry but this less than deadly force did not halt Curry’s aggression. This fact, coupled with the facts that Curry was obviously intoxicated, younger, and larger than the defendant who was still recovering from an operation, and that he had his hands about defendant’s throat over a fresh surgery scar, lead us to believe, as it did the trial court, that defendant’s fear of the danger of death or severe bodily harm was genuine and founded on facts which would likely produce similar emotions in men of reasonable prudence.

We find that the plaintiffs’ contention that there were several truck drivers in the cafe at the time who would have rendered help to the defendant, making it unnecessary for the defendant to use a deadly weapon, is unsupported by the evidence and mere speculation. As perceptively noted by the waitress in her testimony, “it only takes a second to lose your life.” The fact is that no one had come to the defendant’s assistance at the time he felt compelled to protect himself by use of the gun.

The facts surrounding the incident were sufficient to raise a high degree of apprehension in a reasonable man and to cause Bagwell to genuinely believe that he was in jeopardy of death or serious bodily harm. We, therefore, conclude that Bagwell did not use excessive force in order to repel Curry’s violent attack upon him.

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

Affirmed.


text:
    Earnestine CROOK Nee McKoin, Plaintiff-Appellant, v. Warren Shelby WHITE, Defendant-Appellee.
    No. 14030.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc. Rehearing Denied Feb. 29, 1980.

      Paul Henry Kidd, Monroe, for plaintiff-appellant.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for defendant-appel-lee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   MARVIN, Judge.

In this action against her husband’s vendee for damages arising out of a sale of 50 acres of the 70 acre community home-place, the wife’s demands were dismissed on the vendee’s exceptions of no right/no cause of action and of non-joinder of her husband, the vendor in the sale, as an indispensable party. She appeals. We amend and affirm the judgment of dismissal insofar as non-joinder is concerned and find it not essential that we pass on the other peremptory exceptions or the constitutional issues raised. Corpus Christi Parish Credit Union v. Martin, 358 So.2d 295 (La.1978).

The 70 acres were acquired in the name of the husband during the existence of the community. When the wife intercepted a letter from the defendant to her husband in January 1979, she voiced to both, her objection to the proposed sale and her refusal to join in a deed with her husband. The husband sold the 50 acres in March for $35,365 by cash deed. The wife brought suit in April 1979 against the vendee.

The wife sought damages ($27,684) for the value of her one-half interest and for anguish, humiliation and embarrassment. The wife also sought a judgment declaring that the sale did not convey her one-half interest. In a supplemental petition the wife alleged that CC Art. 2404 [granting statutory authority to the husband as head and master of the community] was an unconstitutional denial of equal protection, due process, and was unreasonably sexually discriminatory.

However the wife’s demands are categorized, we must look to her factual allegations to determine whether her husband is an indispensable party to any relief to which she may be entitled. CCP 641, 927. We must also pass on the motion to dismiss the wife’s appeal on the grounds that the judgment of dismissal was signed after the appeal was taken. CCP 1911, as amended by Act 618 of 1979.

MOTION TO DISMISS

This appeal was lodged on August 14, 1979, before the effective date of the amendment to CCP 1911 (September 7, 1979). La.Const., Art. 3, § 9. Act 618 has been held not to affect appeals pending before September 7, 1979. Morrison Food Services, Inc. v. Cohen 376 So.2d 182 (La. App. 4th Cir. 1979).

On May 31, 1979, the trial court signed a written judgment sustaining the vendee’s exceptions and allowed the wife 10 days to amend her petition, “ . . .in default of which the petition shall be dismissed.” CCP 934. The trial court, expressly mentioning that its judgment of May 31 granted the wife 10 days to amend and that she had not amended, signed a judgment on June 21, 1979, dismissing her demands, with prejudice. The wife appealed on June 15. Under these circumstances, with the two judgments being so interrelated and proximate in time, the appeal shall not be dismissed. Palmer v. Wren, 366 So.2d 960 (La.App. 1st Cir. 1978), writ refused; Nomey v. State Department of Highways, 325 So.2d 732 (La. App. 2d Cir. 1976); Morrison Food Service, Inc., supra.

THE MERITS

The wife’s» allegations were apparently framed in an attempt to avoid the effect of Corpus Christi, supra. There the husband mortgaged the family home without the wife’s consent. She attacked the validity of the mortgage on the grounds, among others, that CC 2404 was unconstitutional. The Supreme Court found the husband had authority under CC 2404 to mortgage the home and declined to consider the attack on the constitutionality of CC 2404 because the wife there failed to exercise her rights to declare the home a legal homestead (LRS 9:2802), which would have prevented the husband from mortgaging the home. “[A] court should avoid deciding the case on a constitutional basis unless a decision on the constitutional question is essential to a decision on the issues.” 358 So.2d at p. 298, emphasis supplied. Three Justices dissented in Corpus Christi, expressly stating their belief that CC 2404 should be declared unconstitutional as a denial of equal protection. Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979).

The plaintiff wife here also failed to exercise her rights under LRS 9:2802. Even should we assume that the wife’s allegations state a cause of action against her husband’s vendee, we must first determine whether her husband is an indispensable party.

The essence of the wife’s demands against the vendee is that her husband did not have authority to sell community property standing in his name especially over her protests. She says his authority is lacking either because of her protests or because of the unconstitutionality of CC 2404. She says because the vendee consummated the sale over her protests she is entitled to damages from him and to a declaration that the sale did not convey any of her one-half interest in the acreage. The wife emphasizes in her brief that contrary to Corpus Christi “ . . .a decision on the constitutional issue is essential to a determination of the issues presented here . . . ” We cannot agree.

In this respect the wife argues that while CCP 641 requires the joinder of a vendor in any action to rescind, CC Arts. 136 and 2406 preclude the wife from suing the husband unless there has been a dissolution of the community. The wife overlooks, however, LRS 9:291, which provides exceptions to the principle stated by the wife. Sub-parts (2) and (3) of this section allow either spouse to sue the other during the marriage for a loss sustained as a result of fraud or bad faith in the administration of the community or for the avoidance of an unauthorized alienation of community property. Since the basis of the wife’s demands against the vendee (for damages and for declaratory relief) concerns the authority of her husband to sell the property, the husband is an indispensable party, whether the lack of authority stems from her protests before the sale or from a constitutional defect in the statute. CCP 641, 927, 934. See Phillips v. Nereaux, 357 So.2d 813 (La. App. 1st Cir. 1978). CC Art. 2404.

The dismissal below was warranted. The wife was granted 10 days in which to join her husband but did not do so. Under, these circumstances, CCP 934 requires that the action shall be dismissed. This dismissal on an exception of non-joinder, however, should not be with prejudice. Alexander v. Town of Jeanerette, 371 So.2d 1245 (La. App. 3d Cir. 1979). See City of New Orleans v. New Orleans Canal, Inc., 173 So.2d 43 (La.App. 4th Cir. 1965), writ refused, and Harris v. Bardwell, 373 So.2d 777 (La.App. 2d Cir. 1979); CCP 1673 and comments following.

Accordingly, we affirm the judgment insofar as it dismisses plaintiff’s petition for her failure to join an indispensable party within the delay ordered by the trial court. We amend, however, to delete the words that the dismissal is with prejudice. As amended, we affirm the judgment. In this procedural posture, it is not essential for us to reach the constitutional issue raised by the other exceptions.

At appellant’s cost, judgment, as amended, is AFFIRMED.


text:
    Alberta SIMMS, Plaintiff-Appellant, v. UNITED INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
    No. 14032.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    Harvey R. Lexing, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by George S. Carso, Monroe, for defendant-ap-pellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   McClendon, Judge.

Plaintiff, the designated beneficiary under an insurance policy on the life of Charles Simms, appeals a judgment rejecting her demand for the benefits under the policy. We affirm.

On May 22, 1978, United Insurance Company of America insured the life of Charles Simms and Alberta Simms was made beneficiary. Under the terms of the policy the insured was obligated to pay weekly premiums. The policy provided for a grace period of four weeks for the payment of each premium after the first, during which time the policy would remain in force. If the premium remained unpaid at the end of the grace period, the policy would then lapse and no longer be in force. The policy contained no provisions waiving the premiums during a period of disability.

Mr. Simms paid his initial premium on May 22, 1978, but failed to pay the premiums due on May 29 and June 5th. On June 9, 1978, he was injured and remained in a comatose state until his death on July 7, 1978. On the date of insured’s death the premiums on the insurance policy were in default and the four-week grace period had elapsed as of June 29, 1978.

Plaintiff contends that the grace period was extended because the insured’s comatose condition rendered him incapable of paying the premiums and, therefore, she is entitled to recover under the policy as beneficiary.

Defendant contends that the four corners of the policy govern the obligations of the parties and the unambiguous provisions of the insurance contract limiting and defining coverage must be given effect.

Plaintiff cites the cases of Bell v. Acacia Mutual Ins. Co., 16 So.2d 821 (La.1944) and Hickman v. Pan-American Life Ins. Co., 186 La. 997, 173 So. 742 (La.1937), and urges the court to apply by analogy the rules set forth in these cases. However, the life insurance contracts in both of these cases contained total disability waiver of premium benefits. The policies also required that the insured who became totally disabled furnish proof thereof to the insurer before default in the payment of a premium in order to claim the waiver of premium benefit. In both cases the total disability of the insured was insanity and no notice of this disability was given prior to default on a premium payment. In both cases it was held that the insured was not obligated to give the notice required by the policy in order to claim the disability waiver of premium benefit because the disability itself rendered compliance with the notice requirement impossible and the beneficiaries were, therefore, entitled to recover.

In its well reasoned and written opinion, the trial court distinguished these cases for the following reasons:

“In the instant case, the insurance policy does not contain a clause waiving payment of premiums because of total disability. Had it contained such a provision, no doubt the cases cited by plaintiff would have been entirely applicable because the insurer would have contracted to waive future premiums not in default if Simms became totally disabled, which he obviously did. Additionally, because of his unconsciousness, he would not, under the rationale of the above cited cases, have to comply with any notice. However, it is of importance to note that Simms did not contract for this type coverage. Thus, he undertook upon himself the risk that he might become totally disabled and not be able to pay his premiums as required under the policy. Additionally, there are other significant differences between the hereinabove cited cases and the instant case. In the cited cases, the insureds were in fact totally disabled and clearly entitled to the waiver of premium benefits. The only condition of the policies they could not comply with was the notice condition, and the Supreme Court waived this condition because of the nature of their disability. In the instant case, it would be mere speculation to assume that Simms would have paid the delinquent premiums had he been conscious since he had defaulted on the May 29 and June 5 premium payments before he became injured. He may have intended to let the policy lapse. However sympathetic the Court may be with the fact that Simms was injured and rendered unconscious, it can ill afford to grant equitable relief in such a speculative situation and, further, it cannot overlook the fact that should Simms have become totally disabled, though not unconscious, and unable to pay his premiums, the policy would have lapsed at the end of the grace period since he did not seek to insure himself against the disability risk.”

The trial court further opined “that the contract between the parties must govern because it is clear and unambiguous and falls within the general rule to the effect that the disability of the insured does not excuse nonpayment of premiums so as to keep the policy in force where there is no provision for waiver during disability.”

The payment of weekly premiums on time was the prime consideration for issuing the contract of insurance. The premiums were in default when Simms was injured and rendered unconscious; the grace period had expired when Simms died; and the policy contained no provision for disability waiver of premiums. Therefore, the trial court was entirely correct in denying plaintiff’s claim.

The judgment is affirmed at appellant’s cost.


author: PRICE, Chief Judge.

text:
    Johnny Everett GIPSON, Plaintiff-Appellee, v. Linda Kay GIPSON, Defendant-Appellant.
    No. 14033.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc. Rehearing Denied Feb. 29, 1980.

    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Truly W. McDaniel, Shreveport, for plaintiff-appellee.
    Before PRICE, C. J., and HALL and McClendon, jj.

       MARVIN, J., recused.

   PRICE, Chief Judge.

This is an appeal by the defendant-wife from a judgment awarding her husband a separation on grounds of cruel treatment and rejecting her reconventional demand for a separation because of the plaintiff’s alleged acts of cruel treatment and constructive abandonment of defendant. We reverse and award a judgment of separation to defendant.

Plaintiff alleged defendant has continuously failed and refused to perform the normal duties of a housewife during the entire period since their marriage in May of 1968. He contends the constant state of disorder and untidiness in the household became unbearable and he separated from defendant on August 24, 1978, at which time he delivered defendant and the two children to the home of her parents in Springhill.

Defendant on the other hand contends plaintiff’s treatment of her was cold and indifferent, and that his actions in forcing her to leave the home in August of 1978 constituted cruel treatment and constructive abandonment which entitle her to a separation.

Defendant, while admitting she is a poor housekeeper which has displeased her husband, contends he has condoned and forgiven her deficiencies in this regard by living with her for ten years and fathering their two children. She further contends she has experienced mental problems requiring institutional care and treatment on five separate occasions during the marriage which indicate her failure to properly function as a housekeeper was not intentional.

The trial court found defendant’s shortcomings as a housekeeper constituted cruel treatment, and that in the absence of any medical testimony he could not accept her excuses based on mental illness.

We find the trial court erred in not giving more weight to the evidence which strongly suggests defendant’s failure as a housekeeper was at least in part caused by her continuing mental difficulties. Although there is no testimony by any physician who treated defendant, it is admitted by plaintiff that she experienced mental problems which were sufficiently serious to require her commitment to Central Louisiana Hospital on five occasions, and that she regularly visited the Shreveport Mental Health Clinic as an outpatient and was under medication for a mental condition. In light of these circumstances and the willingness of plaintiff to overlook defendant’s deficiencies for such an extended period of time while children were being conceived of their relationship, defendant should not be east with fault on the basis of cruel treatment toward plaintiff which would justify the award of a separation in plaintiff’s favor.

The evidence does establish cruel treatment and constructive abandonment on plaintiff’s part which should afford defendant relief under here reconventional demand. Plaintiff admits telling defendant he no longer loved her during the month of August 1978 and a few days thereafter taking defendant and the children to her parents home and leaving them. At the time of trial he continued to admit he no longer cared for defendant and did not want to resume the marriage relationship.

For the foregoing reasons the judgment awarding plaintiff a separation from defendant is reversed and it is ordered that there be judgment in favor of Linda Kay Gipson, plaintiff in reconvention, awarding her a separation from bed and board from Johnny Gipson, defendant in reconvention. It is further ordered that the community of acquets and gains heretofore existing is dissolved and each is decreed to be the owner of an undivided one-half interest therein. The costs of this appeal are to be borne by plaintiff; all other costs are to be taxed against the community.


text:
    SUCCESSION OF Sidney BROWN, Jr.
    No. 14034.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 22, 1980.
    En Banc. Rehearing Denied Feb. 29, 1980.

      Weiner, Weiss, Madison & Howell by John M. Madison, Jr. and James R. Madison, Shreveport, for plaintiffs-appellants.
    S. P. Davis, Shreveport, for defendant-ap-pellee.
    Before MARVIN, JONES and McCLEN-DON, JJ.
   JONES, Judge.

Plaintiffs, Ruby Atkins, Betty Jean Lee, Nathaniel Brown, and Eugene Brown, sue to annul a judgment of possession recognizing defendant, Effie Brown, as the sole heir of Sidney Brown, Jr. From a judgment rejecting their demands plaintiffs appeal. At issue is the constitutionality of Article 919 of the Louisiana Civil Code under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and under Article 1, § 3 of the Louisiana Constitution. We reverse, finding Article 919 to be invalid under both of these constitutional provisions.

All parties at trial stipulated that plaintiffs are the acknowledged illegitimate children of Sidney Brown, Jr., who died on January 1, 1978 in Caddo Parish with no children having been born of his two marriages. He had, however, in 1965 adopted defendant, Effie Brown, who was formerly another illegitimate child. On February 20, 1979 plaintiffs filed this suit seeking a rescission of the judgment of possession.

As amended by Act 607 of 1979’s regular session, Article 919 provides as follows:

“Illegitimate children are called to the inheritance of their father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state . . .”

Article 919 excludes acknowledged illegit-imates from participating in the succession of their father when he is survived, by legitimate descendants, ascendants, collateral relatives, or surviving spouse. Plaintiffs challenge this article as infringing upon their constitutional guarantee of equal protection of the law because Article 919 discriminates against acknowledged illegiti-mates in a constitutionally impermissible manner. Plaintiffs contend that on the basis of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), Article 919 is no longer constitutionally valid.

Article 919 was previously challenged in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). The U.S. Supreme Court there found Article 919 not to be a violation of the rights of the acknowledged illegitimate. The court held that because the State of Louisiana has the power to regulate the disposition of property left in Louisiana by a man dying there, because Louisiana has the authority to make rules designed to strengthen family life, and because there was no insurmountable barrier created by Louisiana to prevent this illegitimate from inheriting, Article 919 was free from any constitutional infirmities. The scrutiny given Article 919 was quite cursory and was comparable to the minimal equal protection analysis given legislation in the sphere of police power and economic regulation. See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), in which it was stated:

“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.” Id. 427 U.S. at 303, 96 S.Ct. at 2516-17, 49 L.Ed.2d at 516-517.

However, this minimal scrutiny has been rejected as the proper test of a statute discriminating against persons on account of the illegitimacy of their birth (Trimble and Lalli, supra). The two-tier approach discussed in Dukes, supra, (strict scrutiny for all statutes trammeling fundamental personal rights or drawn upon the suspect classes of race, religion, or alienage and minimal scrutiny for all other statutes) has been augmented by a middle level of analysis for statutes grounded upon such categories as sex [Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979)] and, more importantly for our purposes, birth [Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976)]. The test to be applied is not the minimal protection one used in Labine in 1971 but is now this middle level of much more scrutinizing inquiry:

“. . . classifications based on illegitimacy are not subject to ‘strict scrutiny’, they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests.” Lalli 99 S.Ct. at 523. [emphasis ours]

Under this level of equal protection analysis the Illinois statute in Trimble, which permitted an illegitimate to inherit from his or her father only if the father had both acknowledged the child and married the mother, was held to be constitutionally infirm. The court in Trimble, in addition to affirming Mathews’ rejection of the minimal scrutiny used in Labine, also repudiated two of the “rational” bases upon which Labine was grounded. Trimble rejected as proper justification for a statute discriminating against illegitimates the promotion of legitimate family relationships accepted in Labine by “only the most perfunctory analysis”. Trimble 97 S.Ct. at 1464. The court found the Illinois statute to bear “only the most attenuated relationship to the asserted goal”, Trimble at 1464, that is, the promotion of legitimate families.” [We] have expressly . . . rejected the argument that a State may attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships.” Trimble at 1464-65. This ground upon which Article 919 was held constitutional is therefore now invalid.

The court also rejected the presence or absence of an insurmountable barrier to the illegitimate’s right to inherit as being “an analytical anomaly” (Trimble at 1467) and unacceptable as a rational basis to support the discrimination. Here, as in Trimble, the issue is the constitutionality of a state intestate succession law that treats illegitimate children differently from legitimate children. The law is to be analyzed as to whether this legislative distinction is justified by the achievement of recognized state objectives. Trimble makes clear that La-bine’s postulations as to how the illegitimate could have succeeded to her father’s estate (e. g., if the father had left a will, if the father had legitimated her) are mere hypotheses which will not clear the statute of its underlying invalidity. “Hard questions cannot be avoided by a hypothetical reshuffling of the facts.” Trimble at 1467.

The only remaining rationale from La-bine left valid after Trimble is the state’s interest in the orderly disposition of property at death. Trimble recognized that this acceptable state goal is “particularly within the competence of the individual States”. Trimble at 1465. The court recognized that the difficult and grave problem of proving paternity “might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally.” Trimble at 1465, Lalli, supra, re-emphasized the fact that the just and orderly devolution of property is an area in which the states have an important interest. However, this important interest is not unquestionable but must yield in the face of constitutional mandates.

“For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.” Trimble at 1465.

The court in Trimble, supra, recognized that the problems of proof of paternity may warrant some discrimination against illegit-imates but that any state statute so doing must be “carefully tuned to alternative considerations” (quoting from Mathews, supra ). The Illinois statute contained no alternative considerations and was broadly prohibitive to illegitimates who had been acknowledged but whose parents had not married one another. As stated in Trimble at p. 1466:

“Difficulties of proving paternity in some situations do not justify the total statutory disinheritance of illegitimate children whose fathers die intestate.”

Lalli, supra, contained the supreme court’s next declaration as to how states may constitutionally achieve their goal of stable land titles and orderly disposition of property and at the same time award ille-gitimates equal protection of the law. In this case a New York law requiring an illegitimate to obtain an order of filiation within two years of his birth (although the court looked at the statute only from the view-point that it required a filiation order during the lifetime of the father, see 99 S.Ct. FN. 5, p. 524) was held to be constitutional. This statute was passed in 1965 to soften the strict law of the past which allowed an illegitimate to inherit only from his mother. Unlike the statute in Trimble the New York law did not disqualify an unnecessarily large number of illegitimate children but only barred inheritance when the illegitimate had failed to obtain a filiation order during the father’s lifetime. The state’s primary goal was to provide for the just and orderly disposition of property at death. The means chosen to achieve this goal, i. e., the requirement of a filiation order during the lifetime of the father, was held to be substantially related to the important state interest, and therefore the statute was not unconstitutional under the Equal Protection Clause.

The supreme court recognized the New York Legislature intended to give illegiti-mates “in so far as practicable” inheritance rights on the same level as legitimates and simultaneously guard the important and acceptable state goals. Different from the statute reviewed in Trimble, the New York statute was the result of the legislature’s having considered and enacted “the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity”. Trimble 97 S.Ct. at 1465. Emphasizing these and other differences between the Illinois and New York laws (viz., the Illinois requirement of marriage and the Illinois goal of promotion of family relationships), the supreme court held the New York statute to be a constitutionally acceptable means of achieving the state’s rational goal of orderly property devolution because these means were substantially related to that goal.

In our view Lalli is neither a limitation upon nor an overruling of Trimble and its underlying rationale. Rather, the supreme court uses the Trimble approach (the middle level of equal protection analysis) to determine whether the New York statute is constitutional. In so deciding, the court elucidates what type of statute will be held to balance acceptably the equal protection rights of the illegitimate and the achievement of the state goals of a stable property system and orderly distribution of intestate property.

The following quotes from the Trimble and Lalli opinions clearly announce that any state statute which totally disinherits illegitimates is invalid for the reason that it violates the Equal Protection provision of the U.S. Constitution:

“For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, Section 12 is constitutionally flawed.” Trim-ble at 1465.
“The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes.” Lalli 99 S.Ct. at 527.

We begin our analysis of Article 919 with the recognition that the goals it seeks to achieve are stability in land titles and an orderly devolution of property upon death. These goals are of course proper, but the means sought to achieve them must be substantially related to the state interest which Article 919 seeks to serve. As stated in Lalli at 525:

“This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved.”

Lalli recognized the problems that argue against treating illegitimates identical to all other heirs of an intestate father — proof of paternity, service of process, finality of decrees in estate distribution, spurious claims. None of these difficulties, however, justify a state statute which statutorily bars any illegitimate from participating in his father’s estate as does Article 919. Art. 919 serves to achieve the proper state goal by excluding each and every acknowledged illegitimate child who happens to have the statistically probable misfortune of having his natural father survived by any legitimate descendant, any ascendant, any collateral relation, or a wife. This meat-ax effect of cutting out illegitimates in all conceivable situations (except for the happenstance of the natural child’s being his father’s sole survivor) is certainly not “tuned to alternative considerations”. The means devised are not substantially related to the goal sought to be achieved in that the same goal could be achieved by not excluding significant categories of illegitimates who could be allowed to inherit without disrupting the orderly settlement of the estates of intestate fathers. Article 919 effects a total statutory disinheritance of acknowledged illegitimates whose natural fathers are survived by either legitimate descendants, ascendants, collaterals, or surviving spouse. “The reach of the statute was far in excess of its justifiable purposes.” Lalli at 527, discussing the Illinois statute struck down in Trimble. Article 919 likewise stretches too far when it pushes outside the parameters of intestate successions all illegitimates who are not sole survivors of their fathers. Because the ille-gitimates here were excluded from their father’s succession without ever having any procedural opportunity to place themselves in his intestate succession (despite the fact that they were acknowledged, they did not have the statutory device available to the illegitimate in Lalli), Article 919 disinherits too broadly and thus violates the Equal Protection Clause by failing to have a substantial relationship to its goal.

After Labine, supra, was decided in 1971, the 1974 Louisiana Constitution was adopted, and it significantly contained a mandatory prohibition against any arbitrary, capricious, or unreasonable discrimination based on a person’s birth. Art. 1, § 3 provides as follows:

“No person shall be denied equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.” [emphasis ours].

The members of the Constitutional Convention intended this Article to include:

within its scope unreasonable discrimination based on illegitimacy.” Succession of Thompson, 367 So.2d 796 (La.1979) at 798.

The Constitutional Convention intended all unreasonably discriminatory practices based on illegitimacy to be encompassed within the section. See Thompson and footnotes 2 and 4 at 798:

“Therefore, it is clear that the Louisiana Constitution requires an examination of any law which discriminates on the basis of birth to determine whether the statutory distinction is arbitrary, capricious, or unreasonable.”

Our conclusion that Article 919 violates the right to equal protection of the laws of illegitimates because (1) the total exclusion means adopted by Article 919 bears no substantial relation to the state goal of the protection of land titles and (2) the distinction drawn between these illegitimate children and all other relations of the decedent is arbitrary, capricious, and unreasonable is not a startling new development. It is one further extension in a line of judicial determinations striking down Louisiana laws which discriminate unconstitutionally against illegitimates.

The U.S. Supreme Court has three times invalidated Louisiana statutes because of their denial of equal protection rights to illegitimates. Levy v. La., 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), struck down the discriminatory effect of our wrongful death statute (LSA-C.C. 2315) as applied to illegitimates because it gave legitimate, but not illegitimate, children a cause of action for the wrongful death of their parents. In Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), a provision of our workmen’s compensation law was held to violate the Equal Protection Clause because it denied equal recovery rights to dependent unacknowledged illegitimates. Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), likewise ruled unconstitutional a construction of LSA-C.C. 2315 that denied a cause of action to a mother for the wrongful death of her illegitimate child.

The Louisiana Supreme Court has found unconstitutional under Art. 1, § 3 of the 1974 Constitution testate codal provisions which discriminate against illegitimates. Succn. of Thompson, supra, found Article 1483, which denied acknowledged illegiti-mates the right to receive by testament any amount beyond mere alimony when there were legitimate descendants of the testator, to be an arbitrary, capricious, and unreasonable statutory distinction based upon birth in violation of the constitutional prohibition. Earlier, C.C. Article 1488 was also held to be a violation of the rights granted illegiti-mates in Art. 1, § 3 because it prevented a parent from bequeathing any substantial part of his estate to a child conceived of an adulterous or incestuous connection. Succession of Robins, 349 So.2d 276 (La.1977).

The Louisiana Supreme Court recently granted writs for the purpose of considering the constitutionality of Article 919 (see Justice Tate’s dissent in the original hearing). In this case the trial court held that two acknowledged illegitimates were not called to the succession of their natural father because of the existence of a collateral relation, the decedent’s sister. Quiett v. Estate of Moore, 378 So.2d 362 (La.1979). On the original hearing and the rehearing (Dec. 13, 1979) the court declined to consider the constitutional issue and decided the case on other grounds.

We hold that Article 1, § 3 of the Louisiana Constitution prohibits the total denial of inheritance rights of acknowledged illegitimates in the successions of their natural fathers who are survived by other relations, even though Article 919 is designed to serve the important state purpose of protecting land titles. The unlimited discrimination present in Article 919 is unreasonable and arbitrary and thus contrary to the provisions of our State Constitution. Although Article 919 has the sound purpose of protecting the reliability of property titles, the same purpose could be satisfactorily guaranteed by the legislature’s providing necessary tests and guidelines to assure all illegitimates could inherit equally with legitimates except those ille-gitimates to whom granting such a right of inheritance would tend to have the effect of creating instability of titles.

The method chosen by the legislature to achieve this equality could take any of several forms. The New York Legislature did it by requiring the illegitimate to establish paternity within two years of his birth and before his father’s death. See Lalli, supra. The U.S. Supreme Court, applying their jurisprudentially developed guidelines of reasonableness, found this plan (at least as to the requirement of a filiation order before the father’s death) to be constitutionally acceptable. As suggested by H. Alston Johnson in his Report To The Louisiana State Law Institute (Revision of the Louisiana Civil Code of 1870, Bk. Ill, Titles I and II, Successions and Donations, Dec. 7, 1979), the Louisiana Legislature could require proof of filiation to be made (1) only during the lifetime of the father, (2) within six months of the father’s death, or (3) within six months after the majority of the illegitimate claiming as heir. The statutory scheme is one which is peculiarly within the province of the legislature:

“The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession.” Trimble 97 S.Ct. at 1465.

Our legislature could and should protect the soundness of our land titles by evolving a test permitting illegitimates to inherit equally with legitimates under circumstances where such a rule does not endanger title soundness, and prohibiting their right to inherit equally when to do so would threaten the stability of titles. A legislative rule conceived along these lines would not be unreasonable or arbitrary even though necessarily containing some discrimination based upon birth and under these circumstances would not be contrary to Article 1, §3.

This function being legislative rather than judicial, we have no choice but to hold that Article 919 in its present form is contrary to the Louisiana Constitution. We anticipate that the legislature will in the near future address itself to the problem of protecting our land titles against spurious or stale claims of persons asserting their status as acknowledged illegitimates and therefore as heirs in such a manner that the new statute will meet the test of constitutionality under both the Louisiana and the U.S. Constitutions.

The judgment below is REVERSED and the judgment of possession initially rendered in this succession signed February 23, 1978 is annulled. The case is REMANDED in order for the trial court to determine the amount which defendant received from the sale of the succession property so that an accounting may be made in accordance with a new judgment of possession to be rendered in accordance with the views here expressed, and for such further proceedings as may be appropriate and in accordance with law. Appellee is assessed all costs.

      . This Act made no substantive change in Art. 919. It substituted the word illegitimate for natural as the first word in the article and eliminated the word natural preceding the word father.