author: LOTTINGER, Judge.

text:
    Lyndall Sharp WOOD v. Karl D. WOOD.
    No. 82 CA 0269.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Mike J. Balen, Covington, for plaintiff, appellant.
    Lyndall S. Wood, in pro. per.
    Richard A. Tonry, Chalmette, and Bruce G. Reed, Atty., New Orleans, for defendant appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   LOTTINGER, Judge.

This suit involves the judicial partition of a community property regime. At issue is the status of several tracts of land acquired during the marriage in the name of the husband, Karl D. Wood.

Appellant, Lyndall Sharp Wood, married Karl D. Wood on March 3, 1949. The couple was divorced on March 29, 1979. During the thirty-year existence of their community property regime, five parcels of land in St. Tammany Parish were acquired in the name of Karl D. Wood, identified briefly as follows:

1) 74.47 acres acquired by act dated September 30, 1956 and recorded in COB 246, folio 338, and by act dated March 22, 1957, and recorded in COB 252, folio 585.
2) Parcel of land and improvements East lh of East lk of Square 25 in Town of Talisheek acquired by act dated December 23,1958, and recorded in COB 268, folio 253.
3) 115.55 acres acquired by act dated December 23, 1958 and recorded in COB 271, folio 14.
4) Lot Number 4, Square 16, and Lots Numbers 4, 5, 6, 7 and 8, Square 2, Town of Sun acquired by act dated December 23, 1958, recorded in COB 268, folio 251.
5) 10 acre parcel and improvements in Section 22, Township 5 South, Range 13 East, acquired by act dated September 16,1969, and recorded in COB 548, folio 254.

Lyndall Sharp Wood filed suit for a partition of community property, alleging that these five parcels formed a part of the community, and prayed for a partition in kind.

TRIAL COURT

At trial, Karl D. Wood, through his attorney of record, admitted that Parcel # 5, as listed above, was the family homestead and was community property. Subject to objections maintained by Mrs. Wood’s counsel, the trial court received parol evidence which indicated that Parcels # 1, 2, 3, and 4 devolved to Karl D. Wood through his deceased father’s succession, as part of a partitioning agreement with his co-heirs, his mother, and his uncle.

The acts transferring title to Parcels # 1, 2, 3, and 4 were in the form of a sale and recited cash considerations. None of the acts contained the “double declaration” that the property was acquired with the separate funds of the husband and was obtained for his separate estate. The trial court, while noting the absence of any double declarations, adjudged Parcels # 1, 2,3, and 4 to be the separate property of Karl D. Wood. The basis for this decision was the court’s determination that a partition of their father’s succession between Karl D. Wood and his co-heirs was actually intended through the acts in question, rather than a sale. Parcel # 5 was held to be community property, and the trial court found it was not divisible in kind. Lyndall Sharp Wood has appealed devolutively.

SPECIFICATIONS OF ERROR

Appellant, Lyndall Sharp Wood, argues generally that the absence of a double declaration in the acts by which her husband obtained immovable property during the marriage creates an irrebuttable presumption that the properties obtained thereby fell into the community of acquets and gains, and that the trial court erred in receiving controverting parol evidence and in declaring Parcels # 1, 2, 3, and 4 to be Karl D. Wood’s separate property. She also reasserts her contention that the parcels can be partitioned in kind.

DOUBLE DECLARATION

The jurisprudence interpreting now-repealed La.Civ.Code arts. 2334 and 2402 has established that as to immovable property conveyed to the husband for a cash consideration during marriage, there is an irrebuttable presumption that it is community property unless there is contained in the act of acquisition the double declaration that the property was acquired with funds belonging to the husband separately, and that it was being acquired for his individual estate. See: Phillips v. Nereaux, 357 So.2d 813 (La.App. 1st Cir.1978); rehearing denied, 361 So.2d 228 (La.App. 1st Cir.1978) and cases cited therein; Barnett v. Barnett, 339 So.2d 495 (La.App. 2nd Cir.1976); writ ref. 341 So.2d 1127 (La.1977) and cases cited therein.

Our brethren on the Third Circuit in Primeaux v. Libersat, 307 So.2d 740 (La.App. 3rd Cir.1975); writ granted, 310 So.2d 847 (La.1975); reversed on other grounds, 322 So.2d 147 (La.1975) discussed the bases for the double declaration requirement as follows:

“One such basis involves public policy and has been recognized by our courts for almost a century, this being the fact of notice to third parties via recordation in the public records. The function of the double declaration is to place the public on guard and on inquiry as to the actual existing facts. Thus they can presume that anything in the name of the husband, without the declaration, is held for the community. Without requiring such a declaration and thus enabling the husband to freely fix at any subsequent time the tenure by which the property is held, the title to such would be ‘an uncertain, floating title, neither advisable nor permissible’. [Footnote omitted.] However, if in turn, the property is in the wife’s name the public cannot presume that it is community property and must investigate. Sharp v. Zeller, 110 La. 61, 34 So. 129 (1902); Succession of Burke, 107 La. 82, 31 So. 391 (1902); Hero v. Block, 44 La.Ann. 1032, 11 So. 821 (1892); Huie at 26 Tul.L.Rev. 446; Wilcox, Civil Law Comments—The Marital Status of Property Purchased with Separate Funds, 9 Tul.L.Rev. 107, 115.
“Another reason for the distinction stems from the relative positions of the wife and husband in the administration of the community. Inasmuch as the husband is given extensive powers of control over the community, the wife in turn must have counter-balancing protections. One such protection is the ‘double declaration’ by the husband in order that there is reliable evidence of his intention at the time of the purchase. If the husband did not have to make it clear at the time of purchase that the property acquired was his separately, but could do so at a later date, it might well happen that the husband would leave this declaration to a subsequent time, when the value of the investment was determined. For example: If the property diminished in value, or a debt on it fell due, the husband could claim it was community property and therfore the community would be liable. He could further materially injure the wife’s rights in the community assets if the property increased in value. Sharp v. Zeller, supra; Metcalf v. Clark, 8 La.Ann. 286 (1853); Bass v. Larche, 7 La.Ann. 104 (1852); dissent in Hollier v. Fontenot [216 So.2d 842 (La.App.) ], supra; Huie at 26 Tul.L.Rev. 446, Wilcox at 9 Tul.L.Rev. 116.”

This court in Phillips, supra, while declining to hold the double declaration requirement unconstitutional as violative of equal protection, pointed out that the historically relied-upon bases had no true rational justifications.

The jurisprudence has stated that the double declaration is essential to put third parties who rely on the public records on notice that the immovable property being acquired may not be community property, and thus alert third parties to investigate further the actual existing facts. However, under former La.Civ.Code art. 2334, the husband can lease, mortgage, or sell community property without the wife’s consent, unless it stands in both their names or has been declared to be the family home. Thus, the paramount question to third parties is not whether the property is separate or community, but rather whose signature(s) must appear on a conveyance. The presence of a double declaration does not aid in determining who will sign, since the presence thereof does not benefit the husband with a conclusive presumption that the property is his separately. Thus, even if a double declaration appears, the third party must still determine whether the property is nonetheless community and if so, whether the wife is required to sign a conveyance. Unless prohibited by former La.Civ.Code 2334, the husband of his own volition may alienate community property, regardless of the absence of a double declaration in the act of acquisition. Thus, the double declaration requirement does little, if anything, to aid third parties who rely on the public records.

Another stated basis for the requirement involves the apparent concern of the courts that since the husband as head and master of the community has such extensive powers, he can acquire immovable properties with his separate funds and subsequently pick the better investments to fall into his separate estate. It is argued that the double declaration rule prevents this practice.

This approach, however, again assumes that the presence of a double declaration presumes the property separate without further proof, which is simply not so. If the husband cannot demonstrate by a preponderance of the evidence that his separate assets or funds were expended in acquiring the property, the property is community, and the double declaration does not avail him. If he is able to meet such a burden of proof, he should prevail regardless of the presence (or lack thereof) of the double declaration, since under the Revised Civil Code, property acquired with his separate funds should be owned by him separately, former La.Civ.Code art. 2334. In such a case, the only asset the community (and the wife) “loses” is that which in reality it was never entitled to receive. Additionally, even if the husband subsequently claims property as his separately, the community still obtains all fruits which the property has produced during the marriage; see former La.Civ.Code art. 2402, see also Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952). Thus, even without the double declaration rule, the wife’s only true loss caused by her husband’s later declaring successful investments as his separate property is that of her expectation that such investments were part of the community.

As do many judicially-created rules, the double declaration rule creates pitfalls which may outweigh its dubious advantages. If the double declaration is required, a wily husband may abuse his administrative powers by intentionally omitting it. The property is then presumed community conclusively. The husband then may squander, waste or abuse the property and later, by demonstrating that his separate funds were expended in its acquisition, charge the community for the full reimbursement of the purchase price, since the expenditure of his separate funds have enriched the community. The wife’s only recourse is to renounce the community (upon dissolution) or move the court for a separation of property, former La.Civ.Code arts. 2410 and 2425.

A husband can also “dump” bad investments onto the community even if a double declaration is present, since there is no presumption in his favor created thereby. Property acquired during marriage is presumed community even when a double declaration is present, and if the husband declines to adduce evidence which proves its separate status, the community prevails. In such an instance, it would be incumbent on the wife to prove that the property was the husband’s separately, a result which seems anomalous.

The double declaration requirement and its corollary, that the husband can nonetheless recover the amount of his separate funds expended in acquiring property conclusively presumed community, has at times produced freakish results in controversies. In Schoeffner v. Schoeffner, 163 La. 142, 111 So. 655 (1927), the husband acquired immovable property by a deed which recited a cash consideration. It was undisputed at trial that the actual consideration therefor was the settlement of a dispute between the husband and his brother-in-law over his sister’s succession, and no cash ever exchanged hands. The Supreme Court noted in the act a cash consideration and the absence of the double declaration, and found the property was conclusively presumed community. However, the court allowed the husband to recover $3400, the amount of cash recited in the act as the purchase price, even though this amount was never expended by the husband and was a fictitious sum only. Perhaps the court was merely utilizing the recited price as a measure of the value of property which the husband lost to the community. However, to award the husband in “reimbursement” an amount which he admittedly never expended seems curious indeed. If Scho-effner were followed in the case sub judice (as is urged by Mrs. Wood), Karl D. Wood would receive as reimbursement a mere pittance of the value of properties conclusively presumed community, since the record leaves little doubt that the “prices” listed in the acts of sale are by no means serious.

As was noted above, the double declaration requirement is not mentioned in the Revised Civil Code, but is a creature of the judiciary. At the time of the transfers involved herein, neither La.Civ.Code art. 2334 nor art. 2402 literally required a double declaration. As was observed by Justice Dennis in Loyacano v. Loyacano, 358 So.2d 304, 308 (La.1978); vacated and remanded in 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766; overruled on other grounds, Lovell v. Lovell, 378 So.2d 418, 421 (La.1979):

“... civilian judges are not required to depend merely upon a logical analysis of the existing statutes, but may employ other recognized methods of interpretation. They may perform extensive exegesis to discover the original legislative intent; legislative texts may be interpreted so as to give them an application that is consistent with the contemporary conditions they are called upon to regulate; and a particular conflict of interests before the court may be resolved in accordance with the general policy consider ations which induced legislative action rather than by reliance on logical deductions from the language of the text. Both the codal and the doctrinal principles should be employed to discover the meaning of the words of the law.” (emphasis supplied by this court)

See also the comments of Justice Dennis in Ardoin v. Hartford Accident and Indemnity Co., 360 So.2d 1331 (La.1978), to the effect that case law is invaluable in interpreting the Civil Code, but is not the primary source of the law of Louisiana, which rests upon the written expressions of the legislature and other legislative and administrative bodies.

In the instant case, the record taken as a whole demonstrates no reproachable designs on the part of Karl D. Wood to deprive his wife of her share in the community. The record indicates that the only reason cash considerations were mentioned in the acts of acquisition is that the properties involved were formerly a part of the community existing between Mr. Wood’s parents, and since Mr. Wood’s mother divested herself also of her interest in the properties, a recitation of cash consideration was included in the hope of avoiding collation problems in the future which might be created by donations to Mr. Wood by his mother.

Inasmuch as the acts involved herein indicate a cash consideration, a knee-jerk adherence to the double declaration rule would require us to find that the properties involved herein fell into the community between Mr. and Mrs. Wood. However, since we are of the opinion that the historical underpinnings behind the rule are without validity, we decline to follow this jurisprudential rule. Strict application of the double declaration rule to the facts before us would lead to a manifest injustice. This, as a court of law and justice, we cannot allow. We therefore shall not allow the absence of a double declaration in the notarial acts in question to preclude us from examining the actual circumstances behind the acquisition of the properties involved herein.

The record in the trial court makes clear the fact that all of the properties involved were acquired by Mr. Wood in a partitioning agreement between himself, his mother, his uncle, and his co-heirs. The acts in question reflect an attempt to partition a succession rather than effect sales of parts thereof. No cash exchanged hands in the transaction. Because the subject property was obtained totally through inheritance and donations to Karl D. Wood particularly by his mother and his uncle, the parcels are the separate property of Karl D. Wood, former La.Civ.Code art. 2334. The trial court did not err in so holding.

Buttressing our position is the fact that the acts in question contained provisions which state that the interests in immovable property being conveyed were those which devolved both to the vendors and vendee through the succession of Mr. Wood’s father. These provisions, along with the fact that the prices recited were so small as not to seem serious, would arguably alert third parties that a partition among heirs was intended rather than a true sale. See Ortego v. Morein, 212 La. 774, 33 So.2d 516 (1947). Partitions made to settle a succession have not been required to contain a double declaration as a prerequisite to the husband’s proving the separate nature of the property acquired therein. See Troxler v. Colley, 33 La.Ann. 425 (1881); Succession of Miangolarra, 297 So.2d 784 (La.App. 4th Cir.1974); writ ref. 302 So.2d 15 (La.1974); McElwee v. McElwee, 255 So.2d 883 (La.App. 2nd Cir.1971); writ ref. 260 La. 861, 257 So.2d 434 (1972).

Even had we felt constrained to follow the double declaration rule, the result herein would not have been changed, inasmuch as we are of the opinion that La.Civ.Code art. 2340 (enacted by Acts 1979, No. 709), which eliminates the double declaration requirement, can and should be applied retroactively. La.Civ.Code art. 2340 reads:

“Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.7’ (emphasis ours)

Title VI of Book III of the Revised Civil Code was initially repealed by Acts 1978, No. 627, § 6. This Act added La.R.S. 9:2831 through La.R.S. 9:2856 to the Revised Statutes. La.R.S. 9:2838 contained a paragraph with language almost identical to that recited above in La.Civ.Code art. 2340, eliminating the double declaration requirement.

Section Nine of Act 627 of 1978 stated that the statutes therein enacted would take effect January 1, 1980, and would apply to the property and obligations of all spouses, regardless of when the spouses were married or the property acquired (or obligations incurred). However, Section Nine also provided that the new provisions concerning the legal regime (including R.S. 9:2838) could not be construed so as to change the characterization as separate or community of assets acquired prior to the effective date, nor to invalidate any act or transaction made prior to the effective date by a spouse who relied on the law in force at the time of the transaction. Thus, while the new regimes laws enacted in Act 627 of 1978 were expressly made retroactive in general, no provision of the new legal regime could apply retroactively to change the classification of property as separate or community.

In “The Retroactivity Provisions of Louisiana’s Equal Management Law: Interpretation and Constitutionality,” 39 La.L.Rev. 347 at 398-400 (Winter 1979), Professor Cynthia Samuel commented on the possible retroactive application of the 1978 statute which eliminated the husband’s double declaration requirement. Professor Samuel observed that if the double declaration rule was considered simply as an evidentiary presumption governing proof in certain cases, then the elimination thereof could be applied retroactively, since there could be no constitutional objection to applying a civil rule of evidence retroactively. However, Professor Samuel noted that the Louisiana jurisprudence has held that the absence of the double declaration creates an irrebuttable, conclusive presumption. Thus, Professor Samuel reasoned, the double declaration requirement is not truly an eviden-tiary presumption but is instead a rule of classification. As such, the statute eliminating the double declaration could not be applied retroactively because of the prohibition in Section Nine and because of constitutional due process considerations.

Acts 1979, No. 709 repealed Acts 1978, No. 627 in its entirety and enacted a new Title VI of Book III of the Revised Civil Code, entitled “Matrimonial Regimes,” including La.Civ.Code art. 2340 as recited above. Section Thirteen of Act 709 again provided January 1, 1980 as the effective date of the new matrimonial regimes code articles; however, unlike Section Nine of Acts 1978, No. 627, no provision was made for the retroactivity of the new laws. Thus, the legislation itself does not prevent a retroactive application of the elimination of the double declaration requirement, as was the situation with the 1978 legislation.

As a general rule in Louisiana, a law can prescribe only for the future, La.Civ.Code art. 8. However, under the interpretation of this code article by the Supreme Court, laws which are not substantive but are merely procedural or remedial will be given retroactive effect in the absence of language showing a contrary intention, Ar-doin, supra at 1339.

Traditionally, conclusive presumptions have been considered rules of substantive law rather than rules of evidence, 31A C.J.S., Verbo “Evidence,” § 115. It could be argued that since La.Civ.Code art. 2340 abrogates an irrebuttable presumption which is a substantive rule of law, then La.Civ.Code art. 2340 is substantive as well. It could also be argued that La.Civ.Code art. 2340 is substantive because the husband is allowed to adduce proof of the separate nature of property acquired during marriage regardless of what recitations appear in the act of acquisition, which right has been denied to husbands in the past.

We would find neither contention convincing. The ability of the husband to adduce proof of separateness in the absence of a double declaration was not denied by the legislature, but by the judiciary. Yet, in Louisiana, the law is the solemn expression of the legislative will, La.Civ.Code art. 1. The judicial branch of government merely interprets such expressions of legislative will. The decisions of state courts in Louisiana do not create or eliminate substantive rights, since this is the proper function of the legislature. Thus, the jurisprudentially-created double declaration rule could not have affected any substantive right of the husband, nor does the legislative abrogation of the rule restore to the husband any substantive right.

What La.Civ.Code art. 2340 actually does is establish a presumption in favor of the community which can be rebutted by either spouse. As a rebuttable presumption, the article is procedural in nature and can be applied retroactively, Ardoin, supra.

We are also of the opinion that such retroactive application of La.Civ.Code art. 2340 would not operate to divest a wife of a vested right. We reiterate that the pronouncements of state courts are not law in Louisiana, La.Civ.Code art. 1. Thus, the double declaration requirement imposed by the judiciary did not create any substantive right in favor of the wife. A wife cannot claim that her reliance on prior jurisprudence vested any substantive right in her favor because no vested rights are created by the jurisprudence emanating from our state courts, see Pfister v. St. Bernard Cypress Co., Limited, 155 La. 575, 99 So. 454 (1923); cert. den. 266 U.S. 625, 45 S.Ct. 125, 69 L.Ed. 474.

Like former La.Civ.Code art. 2334, present La.Civ.Code art. 2341 states that property acquired by a spouse by inheritance or by donation to him individually is separate property. Thus, under the facts and circumstances of this case, the pertinent parts of La.Civ.Code art. 2341 could also be applied retroactively, since to do so would not effect any change in the substantive law. The result is the same: the properties in question were obtained by Karl D. Wood through inheritance and donations to him particularly, and are therefore the separate property of Mr. Wood, under La.Civ. Code art. 2341. The record compels such a conclusion.

PAROL EVIDENCE RULE

Mrs. Wood also argues that because the conveyances in question were in the form of authentic acts, Karl D. Wood cannot introduce parol evidence to controvert recitations therein. However, this court in Broadway v. Broadway, 417 So.2d 1272 (La.App. 1st Cir.1982), in interpreting La.Civ.Code arts. 2236, 2238, and 2276, held that the parol evidence rule does not apply where the controversy is between those parties to the act of sale who were on the same side and whose interest was identical. See also Richard v. Cain, 168 La. 608, 122 So. 866 (1929). Thus, even if Mrs. Wood were considered a privy to the act because of her marital relationship to Karl D. Wood, she cannot invoke the parol evidence rule against her husband because they are on the same side of the act and theif interest in the act was identical. Additionally, the parol evidence rule does not apply when the writing is collateral to the issue involved and the action is not based on the writing, as is the situation here. See Wampler v. Wampler, 239 La. 315, 118 So.2d 423 (1960).

PARTITION

Inasmuch as we find that the only parcel involved herein which falls into the community is the family homestead of the parties, we agree with the trial judge that it is not divisible in kind.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court in favor of defendant-appellee, Karl D. Wood, is hereby affirmed in all respects. All costs of this appeal are assessed to plaintiff-appellant, Lyndall Sharp Wood.

AFFIRMED.

      . Title VI of Book III of the Louisiana Civil Code of 1970, which contained articles 2325 to 2437, was repealed by Acts 1978, No. 627, § 6. Acts 1979, No. 709, § 1 also repealed Title VI of Book III, effective January 1, 1980, and enacted a new Title VI, consisting of articles 2325 to 2376 under the heading “Matrimonial Regimes.”

      . Former Article 2334 reads:
      “The property of married persons is divided into separate and common property.
      “Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly. The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.

        “Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
      “Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be leased, mortgaged or sold by the husband without the wife’s written authority or consent.
      “Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife’s written authority or consent.
      “Where the title to community immovable property declared to be the family home stands in the name of the husband alone it may not be leased, mortgaged or sold without the wife’s written authority or consent.
      “The limitation on the husband described in the two immediately preceding paragraphs shall not apply where the wife has made a declaration by authentic act that her authority or consent are not required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated.
      “The declaration may be general as to all such property or it may specify property to which it shall or shall not apply. If the declaration so provides, it may apply generally to property which may be acquired in the future, but a contrary declaration of withdrawal of her authority or consent by the wife may be made and recorded.”
      Former Article 2402 reads:
      “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.’ ”

      . The constitutionality vel non of the double declaration requirement has not been made an issue herein, and is therefore not before the court at this time.

      . Certainly there is reason for so doing. It would offend uniformity of the law to require a different standard of proof for property acquired prior to 1980 vis-a-vis property acquired after January 1, 1980.

      . Present article 2341 reads:
      “The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.”


source: Caselaw Access Project

author: LANIER, Judge.

license: Public Domain

text:
    SUCCESSION OF Gertrude Toles JACQUE.
    No. 82 CA 0270.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.
    Michael C. Palmintier of Haymon & Pal-mintier, Baton Rouge, for plaintiff-appellant Harriet Landry.
    Samuel C. Cashio, Cashio & Ward, Marin-gouin, for defendant-appellee William E. Jacque.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is an action to annul a probated olographic will alleging that the testatrix was unable to read and write sufficiently well to understand the purport of her will. After the plaintiff completed the presentation of her evidence, the sole legatee moved for a directed verdict to dismiss the suit because the plaintiff failed to show a right to relief by the law and the facts. La.C.C.P. art. 1810(B). The trial judge granted the motion and this devolutive appeal followed.

I. FACTS

Mrs. Gertrude Toles Jacque died testate where she resided in Iberville Parish on August 2, 1977. At the time of her death, she had neither ascendants nor descendants, but was survived by her husband, William E. Jacque, Jr. Her last will and testament, dated February 4, 1970, was in the olo-graphic form and left all of her property to her husband. On July 24,1978, the will was probated pursuant to La.C.C.P. art. 2883. William E. Jacque, Jr. was placed in possession of the decedent’s property by judgment dated April 25, 1979. This action to annul the probated olographic testament was filed on December 26, 1980, by the decedent’s sister, Mrs. Harriet Landry.

II. VALIDITY OF THE WILL

When an action to annul a probated testament is instituted more than three months after the will has been probated (as in the instant case), the burden of proving the invalidity of the testament rests with the plaintiff. La.C.C.P. art. 2932; Stephens v. Adger, 227 La. 387, 79 So.2d 491 (1955); Succession of Simon, 257 So.2d 794 (La.App. 3rd Cir.1972); Succession of Whitehead, 256 So.2d 759 (La.App. 1st Cir.1971), application denied, 260 La. 1139, 258 So.2d 382 (1972). In addition, it is the policy of the law to maintain the validity of a will and vindicate the deceased person’s wishes if possible. Succession of Thibodeaux, 238 La. 791, 116 So.2d 525 (1959); Successions of Johnson v. Williams, 387 So.2d 1378 (La.App. 2nd Cir.1980); Succession of Bel, 377 So.2d 1380 (La.App. 4th Cir.1979).

The plaintiff presented six witnesses on the factual issue of whether or not the testatrix could read and write at the time the will was executed. Mrs. Harriet Landry testified that she was born in 1910, and Mrs. Jacque was born in 1914. Mrs. Landry saw Mrs. Jacque on a regular basis until 1948. Mrs. Jacque went to school for seven years, but did not learn to read or write. Either Mrs. Ollie Brock or Mrs. Rosa Lee Harris would write letters for Mrs. Jacque. Mrs. Jacque could drive a car, had a driver’s license and could count money. Mrs. Landry testified that Mrs. Jacque could not read and could sign her name, but could do no other writing.

Mrs. Ollie Ruth Brock testified that she was born in 1927 and was the niece of Mrs. Harriet Landry. Mrs. Brock saw Mrs. Jac-que regularly until 1955. Mrs. Brock never observed Mrs. Jacque reading and never observed her write anything other than her signature, which Mrs. Brock taught her to do. On occasion, Mrs. Brock wrote letters for Mrs. Jacque and read letters from relatives to her. Rosa Lee Harris wrote most of Mrs. Jacque’s letters for her. Mrs. Brock testified that Mrs. Jacque’s will “could be her handwriting.”

Mrs. Mary Eva Louden testified that she was born in 1903 and grew up in the neighborhood with Mrs. Landry and Mrs. Jacque. Mrs. Louden never observed Mrs. Jacque either read or write. Mrs. Louden testified that Mrs. Jacque was not mentally retarded and went to school for seven or eight years.

Mrs. Fanny Mae Taylor testified that she was born in 1919 and grew up in the neighborhood with Mrs. Jacque. She testified that she left Rosedale in 1942 and at that time Mrs. Jacque could not read or write. Mrs. Taylor stated that she could not testify about Mrs. Jacque’s ability to read and write in 1970.

Mrs. Rosa Lee Harris testified that she was born in 1929 and lived in the neighborhood with Mrs. Jacque from 1955 until the time that Mrs. Jacque was married in 1969. Mrs. Harris wrote letters for Mrs. Jacque and read letters to her from relatives. Mrs. Harris testified that Mrs. Jacque could not read well and that she never saw her write anything except her name. On occasion, Mrs. Harris made long distance phone calls for Mrs. Jacque. Mrs. Harris identified the handwriting on the olographic will as that of Mrs. Jacque, but observed that Mrs. Jac-que could not have understood some of the words. Mrs. Harris testified that Mrs. Jac-que had a bad handwriting, that she “could not read or write good ...” and that “a few could read and write better than her.”

William E. Jacque, Jr. was called as a witness under cross-examination and testified that he married Gertrude Toles Jacque on September 1, 1969, and lived with her until she died. Mr. and Mrs. Jacque discussed the making of the will and went to an attorney’s office and discussed the will with the attorney. The attorney typed up the form of the will and gave the typed form to Mrs. Jacque. Mrs. Jacque brought the typed form home and wrote up the olographic will in her own handwriting in Mr. Jacque’s presence. Mrs. Jacque then brought the will back to the attorney for his examination and approval. Mr. Jacque testified that Mrs. Jacque could read and he observed her read papers about things on sale and she read the typed will. Mr. Jac-que further testified that Mrs. Jacque told him that she went to night school before they were married to learn to read and write better. Mr. Jacque took Mrs. Jacque to get her driver’s license and she passed the test. Mrs. Jacque was a registered voter and did not need assistance to vote at the polls.

The trial judge ruled that the preponderance of the evidence showed that Mrs. Jacque could read and write and thus was capable of validly executing an olo-graphic will. Implicit in this holding is that the trial judge accepted the testimony of William E. Jacque, Jr. as truthful and that the will was entirely written, dated and signed by Mrs. Jacque as required by La. C.C. art. 1588. A review of all of the evidence in this case reveals that these factual findings of the trial judge are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The plaintiff in this action has failed to sustain her burden of proving that the testatrix was so illiterate that she could not comprehend what she had written.

III. WAS THE GRANTING OF THE DIRECTED VERDICT PROPER?

The law applicable to the appellate review of a judgment granting a directed verdict is set forth in Thomas v. Thom, 408 So.2d 442, 445 (La.App. 1st Cir.1981), writ denied, 412 So.2d 85 (La.1982), as follows:

“In non-jury eases, the appropriate standard for the trial court’s determination of a motion for directed verdict is whether plaintiff has presented sufficient evidence on her case-in-chief to establish her claim by a preponderance of the evidence. Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir.1981); Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011 (La.App. 4th Cir.1980). In making its determination on such a motion, the trial court is not required to review the evidence in the light most favorable to plaintiff but may instead render judgment based upon a preponderance of the evidence. Bryan v. Varnado, supra. Moreover, the directed verdict in a non-jury case should not be reversed in the absence of manifest error. Littles v. Southeastern Fidelity Insurance Co., 398 So.2d 575 (La.App. 1st Cir.1980).”

The trial judge determined as a matter of fact that not only did the plaintiff fail to sustain her burden of proving that the testatrix could not read and write, but that the preponderance of the evidence demonstrated that she could read and write. As indicated above, this conclusion by the trial judge is not an abuse of the much discretion allowed to him in such matters.

IV. CONCLUSION

For the foregoing reasons, the judgment of the trial court is correct and will be affirmed at the appellant’s costs.

AFFIRMED.

      . Apparently, some, if not all, of the decedent’s property was her separate property. Compare Articles 912 and 915 of the Civil Code as they existed at the time of the decedent’s death.

      . This is not an unusual procedure when an attorney recommends an olographic will. 10 L. Oppenheim, Louisiana Civil Law Treatise § 109 (1973).


author: COLE, Judge.

text:
    Donna BACON v. DIAMOND MOTORS, INC.
    No. 82 CA 0290.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 11, 1983.
    Donna W. Lee, Baton Rouge, for plaintiff-appellee Donna Bacon.
    Carey T. Jones, Baton Rouge, for third party defendant-appellee Continental Ins. Co.
    Ben Louis Day, Baton Rouge, for defendant-appellant Diamond Motors, Inc.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

This is an appeal from a summary judgment which dismissed a third-party demand of defendant Diamond Motors, Inc. against its insurer, Continental Insurance Company. At issue is the question of whether or not there is a genuine issue of fact which, as a matter of law, would preclude dismissal of Diamond Motor’s third party demand on the grounds of lack of coverage under the policy.

Plaintiff alleged she delivered her 1979 Datsun one-half ton pickup truck to Diamond Motors for repairs and the repairs were either not performed or were performed defectively. Specifically, plaintiff alleges Diamond Motors purported to overhaul the engine. After Diamond Motors worked on the engine on at least ten separate occasions, plaintiff took the truck to another mechanic who informed her the engine had not been overhauled, but in fact had been damaged beyond repair by Diamond’s previous service attempts. Plaintiff therefore sued for the damages she allegedly incurred. Diamond third-partied Continental, its insurer, who denied coverage under its policy and moved for summary judgment due to the alleged lack of coverage. The motion was sustained and Diamond has appealed devolutively. We affirm.

Summary judgment is an extremely useful device for putting an end to unnecessary litigation, but it is available only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial. Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La.1982).

Diamond Motors contends an issue of fact must be resolved before coverage under the policy can be determined. Diamond argues the pleadings contain a factual dispute as to whether the damage to plaintiff’s truck was caused by the fault of the plaintiff or some third party. Because of this factual dispute, Diamond contends no summary judgment can be granted on the issue of insurance coverage.

The trial judge rejected this contention, since the allegation of possible third-party fault, even if true, would have no bearing upon the alleged liability of Continental as Diamond’s insurer. We agree. Under third party practice in Louisiana, the third party defendant’s liability is derivative so that the third party plaintiff, Diamond Motors, can only recover that for which it is liable. La.Code Civ.P. art. 1111. Thus, the potential liability of Continental as a third party defendant must be measured by the allegations in plaintiff’s petition. Since plaintiff’s petition is based upon Diamond’s failure to repair or negligent repair of her truck, the only question on the motion for summary judgment is whether or not the policy provides coverage for damages caused by the alleged neglect or negligence.

The coverage afforded Diamond by Continental is contained in Part IV(A)(1) of the policy which provides:

“PART IV — LIABILITY INSURANCE.
A. WE WILL PAY.
I. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from garage operations.”

Continental contends there was no “accident” as defined in Part 1(C) of the policy as:

“PART I — WORDS AND PHRASES WITH SPECIAL MEANING....
C. ‘Accident’ includes continuous or repeated exposure to the same conditions resulting in bodily injury or property damage the insured neither expected nor intended.”

Alternatively, Continental maintains that should the incident sued upon be considered an accident, coverage is nevertheless excluded pursuant to Part IV(C) (11 and 12) of the policy which states:

“PART IV — LIABILITY INSURANCE.
if: sjs sf: sfc *
C. WE WILL NOT COVER — EXCLUSIONS.
II. Property damage to any of your products ... if caused by a defect existing at the time it was sold or transferred to another.
12. Property damage to work you performed if the property damage results from any part of the work itself or .from the parts, materials or equipment used in connection with the work.”

The trial judge found that there was no “accident” within the meaning of the policy and that the exclusionary provisions listed above also exclude coverage. We are in substantial agreement with the following reasons of the trial court.

“Our jurisprudence seems well established to the effect that faulty repair work does not fall within the definition of accident and therefore is not within the purview of coverage under the liability provisions of a policy insuring one against accident.
“It was recently so held in Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir.1980), an action which involved a claim against a building contractor for alleged faulty workmanship in constructing a building. Vitenas, above, involved a policy which defined ‘occurrence’ as ‘an accident including exposure to conditions which result during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’
“In the instant case, the definition of ‘accident’ is virtually identical with that of ‘occurrence’ in Vitenas, above, and both cases involve alleged faulty workmanship.
“The Court finds also that Continental’s policy excludes coverage under the hereinabove quoted exclusionary provision.
“The identical exclusion contained in Continental’s policy has been construed to exclude coverage in construction contract policies. Vobil (sic) Homes, Inc. v. Hartford Accident & Indemnity Company, 179 So.2d 496 (La.App. 3d Cir.1965).
“See also Vitenas, above, in which a substantially similar provision was held to exclude coverage for defective workmanship on a structure.
“Plaintiff [Diamond] seeks to avoid the effect of the exclusionary clause by arguing that damage to the engine of her [plaintiff’s] car amounts to damage to property other than that being worked upon and which according to Vobil (sic), above, does not fall within the ambit of the exclusion relied upon by Continental.
“This argument is without merit. Close examination of Vobil (sic), above, reveals that that kind of ‘damages to other property’ contemplated therein is damage to property other than that upon which the work was performed. To the same effect see Kendrick v. Mason, [234 La. 271] 99 So.2d 108 [(La.1958)]; Poynter v. Fidelity & Casualty Company of New York, 140 So.2d 42 [(La.App. 3d Cir.1962) ].”

See also Franks v. Guillotte, 248 So.2d 626 (La.App. 3d Cir.1971) (repairer overhauling automobile engine negligently installed filterhead and “o” rings, causing damage to entire engine; “injury to work” exception held to exclude all coverage).

For the above reasons, the judgment of the trial court is affirmed. All costs are to be paid by appellants.

AFFIRMED.


author: CARTER, Judge.

text:
    Gerald BROWN and Anita D. Brown v. Jerome YASSO, et al.
    No. 82 CA 0295.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      James B. Supple, Franklin, for defendant-third party plaintiff-appellant Aetna Cas. and Sur. Co.
    Douglas H. Greenburg, Houma, for plaintiff and appellee.
    E. Gregory Voorhies, Lafayette, for defendant and appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from the dismissal of a third party demand filed by Aetna Casualty & Surety Company (Aetna) against Grace Yasso. The facts are as follows:

Anita and Gerald Brown filed suit on February 11, 1981 for damages resulting from an automobile accident. The named defendants were Grace Yasso (the alleged tortfeasor), Jerome Yasso (Grace’s husband), and Prudential Property & Casualty Insurance Company (the Yassos’ liability insurance carrier). The Yassos and Prudential filed an answer on May 4, 1981. On August 10, 1981, the plaintiffs filed a supplemental and amending petition adding Aetna Casualty & Surety Company (Aetna), their uninsured motorist insurer, as a defendant and alleging that the insurance issued to the Yassos by Prudential was insufficient to cover plaintiffs’ damages. The plaintiffs subsequently entered into a settlement agreement with the Yassos and Prudential, and on October 12, 1981, a motion and order of dismissal was signed by the trial judge dismissing the Yassos and Prudential from the case. On October 14, 1981, Aetna filed an answer to plaintiffs’ original and supplemental petitions and a third party demand against the Yassos seeking indemnification should Aetna be cast in judgment in the original suit. On December 10, 1981, the Yassos filed an exception of no cause of action to Aetna’s third party demand.

The trial court rendered judgment in favor of the Yassos and against Aetna maintaining the exception of no cause of action. Aetna appeals. We affirm.

The only issue on appeal is whether Aet-na has a cause of action for reimbursement on its third party demand against the tort-feasors (the Yassos) when the tortfeasors (the Yassos) have previously been released by the injured plaintiffs (the Browns). This issue was addressed by this court and the Supreme Court in Pace v. Cage, 394 So.2d 1274 (La.App.1981); 419 So.2d 443 (La.1982).

In Pace, the plaintiff sued the tortfeasor (Cage), Prudential Property and Casualty Insurance Company (Cage’s insurer), and State Farm Mutual Automobile Insurance Company and Hartford Accident and Indemnity Company (uninsured and underin-sured motorist insurers of Pace). Hartford filed a third party petition against Cage to assert and protect its potential right of recovery against her. After Cage answered Hartford’s third party petition, Cage and Prudential entered into a compromise settlement with Pace. Pace subsequently executed a complete release in favor of Prudential and Cage. Hartford made a payment to Pace under its uninsured motorist policy, but refused to dismiss its third party demand against Cage. The trial judge overruled Cage’s exception of no cause and no right of action and Cage applied for writs to this court. This court reversed and held that the trial court erred in not sustaining the exception of no cause of action filed by Cage to the third party demand of Hartford. The Louisiana Supreme Court has recently affirmed this decision, 419 So.2d 443 (La.1982), though disapproving some of the language as being in conflict with Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981), (on rehearing).

In Pace v. Cage, supra, the Supreme Court stated,

“... The court of appeal’s conclusion that an uninsured motorist insurer which makes payment to its insured cannot become conventionally subrogated to its insured’s cause of action against the tort-feasor is disapproved expressly as being in conflict with this court’s decision in Bond v. Commercial Assurance Co., 407 So.2d 401 (La.1981) (On Rehearing). The court of appeal’s decision, which in effect, sustained the third-party defendant’s exception of no cause of action was, nevertheless, correct in this case. The parties stipulated that, before the uninsured motorist insurer made any payment to the insured the insured had completely discharged the tortfeasor from any obligation to the insured in return for a cash payment of $5,000. Consequently, at the time the uninsured motorist carrier made payment to the insured the insured had no rights against his former debtor to subrogate to the insurer. See La.C.C. arts. 2159 et seq.; 2 M. Planiol, Civil Law Treatise, pt. 1, no. 480 at 274 (11th ed. La.St.L.Inst. trans. 1959).”

In the instant case, Aetna has not made any payment to plaintiffs and plaintiffs have discharged their former debtors (the tortfeasors). Plaintiffs no longer have any rights against the Yassos, and no rights exist to which Aetna could be subrogated if and when Aetna should make payment to plaintiffs.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Robert DALGO, Individually and as Administrator of the Estate of his Minor Son, Jessie Dalgo v. Dr. Roy A. LANDRY.
    No. 82-CA-0297.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 11, 1983.
    Arthur Cobb, Baton Rouge, for appellant (plaintiff).

      Donald T.W. Phelps, Baton Rouge, for appellee (defendant).
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Robert Dalgo, individually and as administrator of the estate of his son, Jessie, sued Dr. Roy A. Landry in a malpractice action for damages. The lower court found in favor of Dr. Landry and dismissed plaintiff’s suit.

On appeal, Dalgo urges that the trial judge did not apply the correct standard of care. We affirm.

BACKGROUND FACTS

On Friday morning, June 5,1981, Mr. and Mrs. Dalgo went to the emergency room at Our Lady of the Lake Hospital in Baton Rouge, Louisiana, with their ten-year-old son, Jessie, who was complaining of an earache. Jessie told Dr. Landry, an emergency room physician at the hospital, that it felt like a bug was in his ear. Upon examination, Dr. Landry discovered an obstruction in the ear canal that appeared to be blood and wax. Jessie’s ear was irrigated in order to try to remove some of this obstruction. Further examination and clearing of the ear canal was prevented by the pain and discomfort of the child. Dr. Landry was unable to see the source of the bleeding and pain. He prescribed eardrops to prevent infection and reduce swelling, and Tylenol # 3 for pain. He also advised the Dalgos to see their family physician on Monday. However, Mrs. Dalgo testified that on Sunday she and her husband removed a dark brown bug from Jessie’s ear, at which point his pain stopped. Subsequently, this malpractice action was filed, alleging negligent treatment by Dr. Landry.

STANDARD OF CARE

In a malpractice suit, the plaintiff’s burden of proof is set forth in R.S. 9:2794(A):

“A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
“(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
“(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.”

The above statute thus requires Dalgo to establish the degree of care ordinarily exercised by emergency room physicians under similar circumstances and that Dr. Landry deviated from this degree of care causing damages.

At the trial, the plaintiff did not present a physician to establish the degree of care required of an emergency room physician. However, Dr. Landry presented Dr. Thomas P. Raggio, an ear, nose and throat specialist, to testify on this issue.

Dr. Raggio testified that an emergency room physician is more of a screening physician to do strictly emergency cases, and should not be expected to render the same care that a specialist would provide. When presented with the factual background of this case and Dr. Landry’s actions, he stated that Jessie was given adequate care. Dr. Landry’s inability to see the bug, according to Dr. Raggio, was understandable under the circumstances, i.e., the combination of blood, wax and a dark brown object in the ear of a pained, frightened ten-year-old child. Moreover, Dr. Raggio further testified that Dr. Landry acted properly by not attempting to remove the obstruction from Jessie’s ear.

Based on the foregoing testimony, the trial judge held in favor of defendant and dismissed plaintiff’s suit. Dalgo, on appeal, urges that the judge did not apply a standard of care for an emergency room physician that encompassed a live bug situation. However, the trial judge’s oral reasons for judgment reveal that the proper standard of care was applied:

“I also believe that emergency room physicians are in a different forum than a specialist and had ... Dr. Landry been an ear specialist, we would have a totally different case; however, it is function of an emergency room to deal with the emergency and that means stabilize the patient so that something can be done. Dr. Raggio testified that even if he had seen the bug, if it was still alive it would have to be killed first because removing a live bug would just create more damage .... Whether Dr. Landry should have or should not have seen the bug is a question I don’t think this Court is in a position to answer. The fact that he didn’t but treated it as though he had, trying to reduce the swelling, to stabilize the pain so that it could be visualized and sending him to someone who was in a better position to treat the problem did met the standard of care common to emergency room physicians in the community.” (Tr. at 121)

We find no error in the trial court’s conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DECREE

Accordingly, based on the above reasons, we affirm the judgment of the lower court at plaintiff’s cost.

AFFIRMED.


text:
    Joseph H. PATIN, Jr. v. CONTINENTAL CASUALTY COMPANY.
    No. 82 CA 0299.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23, 1983.

      Arthur Cobb, Baton Rouge, for plaintiff-appellee Joseph H. Patin, Jr.
    Paul H. Jantz, Baton Rouge, for defendant-appellant Continental Cas. Co.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a judgment in favor of plaintiff, Joseph H. Patin, Jr., and against defendant, Continental Insurance Company. The trial court rendered judgment in favor of plaintiff for permanent partial disability for a maximum of 450 weeks payable at the rate of $141.00 per week, plus penalties of 12% on the past due weekly payments from October 28, 1981 until paid and attorney’s fees. The defendant appeals contending that the trial court erred in awarding plaintiff permanent partial disability under the general disability provisions of LSA-R.S. 23:1221(3), but should have awarded compensation for loss of a function of a limb under LSA-R.S. 23:1221(4). The defendant also contends that the trial court erred in awarding plaintiff penalties and attorney’s fees.

Plaintiff contends that the trial court correctly determined that he is permanently partially disabled under LSA-R.S. 23:1221(3) and is entitled to penalties and attorney’s fees.

The issues on appeal are:

(1) The extent of plaintiff’s disability.
(2) Should penalties and attorney’s fees be allowed?

The plaintiff, a carpenter employed by Leo M. Patin, was injured on December 13, 1978, when he fell from a bench while at work, fracturing his right forearm (commi-nuted distal radius fracture). On the date of the accident, plaintiff saw Dr. Barry M. Rills, an orthopedic surgeon, who performed a closed manipulation of plaintiff’s right forearm and applied a long arm cast. Dr. Rills next saw plaintiff on December 15 at which time the cast was bivalved because of swelling. Plaintiff was seen again on December 21 and then hospitalized on December 27 for a closed reduction and percutaneous pinning of the right forearm in an attempt to correct the volar tilting of the right arm. Between January 9, 1979 and April 4,1979, plaintiff was seen by Dr. Rills a total of six times. In the course of these various visits and examinations, the plaintiff was found to have a good alignment of the fracture, but was experiencing considerable pain, swelling and limited motion in the wrist and hand.

On February 14, 1979, the pins were removed and plaintiff started an exercise program which was continued throughout his treatment. On April 4, 1979, plaintiff was allowed to try to return to work, but was limited to light duties. In May of 1979, Dr. Rills again saw plaintiff, finding little improvement and recommended plaintiff be examined by Dr. Daniel C. Riordan, an orthopedic surgeon specializing in surgery of the hand.

Dr. Riordan examined plaintiff on June 14, 1979, and reported that plaintiff had a good reduction and the fracture had healed. He advised plaintiff to continue exercising and using the hand, and that in six to nine months he should have painfree motion without swelling.

Between June and August of 1979, Dr. Rills testified that he saw plaintiff every two to three weeks because of complaints of pain and swelling. On September 9, 1979, plaintiff was hospitalized by Dr. Rills for a carpal tunnel release to relieve pressure on the nerve at the wrist near the fracture site that was causing pain and numbness in the hand. After the operation, plaintiff was continued on his exercise program and on the anti-inflammatory drug which had been prescribed.

In September, 1980, a second carpal tunnel exploration was performed on plaintiff by Dr. Rills. Plaintiff was continued on exercises and anti-inflammatory drugs. Dr. Rills noted that there was still considerable pain in the right wrist, but that plaintiff’s right hand had normal sweating patterns indicating no further nerve pressure.

Between September, 1980 and January, 1981, Dr. Rills saw plaintiff weekly at first because of the pain, and then monthly. On January 27, 1981, plaintiff was referred again to Dr. Riordan for re-examination. Dr. Riordan concluded that no further surgical treatment was needed, but that plaintiff should continue with resistance exercises, swinging hammer and using weights. The doctor speculated that, with the exercises, plaintiff would probably have pain for another three to four months, and thus it would not be safe for him to climb, but he could do carpentry work on the ground.

In February, 1981, after examination, Dr. Rills found plaintiff to be essentially normal except for some mild limitation of motion and mild atrophy of muscles in the right thumb. Plaintiff was also found to be of fair strength. Dr. Rills told plaintiff at this time that he could return to light carpentry duty. Dr. Rills sent plaintiff to vocational rehabilitation since it had been many months since he had been able to perform carpentry work.

Plaintiff attended vocational rehabilitation once but could not continue because of a back injury sustained in an automobile accident in April, 1981. On May 5, 1981, Dr. Rills examined plaintiff in connection with his back injury, which examination included a cursory check of plaintiff’s right hand and wrist. This examination revealed good motion and strength in the right hand and wrist.

Dr. Riordan saw plaintiff again on June 2, 1981, at which time he had no further recommendations or treatment as concerns the wrist injury. Dr. Riordan determined that plaintiff had a permanent partial loss of function of the right hand and forearm which he estimated at a maximum of 20%. Dr. Rills concurred with this as a “maximum” disability estimate.

Continental Insurance Company paid the plaintiff benefits of $141.00 per week for 150 weeks under LSA-R.S. 23:1221(4) for loss of function of a limb. Continental contends that any disability that is preventing plaintiff from returning to work at this time is a result of the automobile accident in which plaintiff was involved in April, 1981, and was not work-related.

LSA-R.S. 23:1221(3), as amended, provides that an employee is deemed partially disabled if he is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience...”

Also, an injured employee is not required to work in substantial pain. Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (La.1969); Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1 (La.1953). A worker is partially disabled where he would experience substantial pain when working in his former occupation, but where he could work in other types of jobs without experiencing such pain. McBroom v. Argonaut Ins. Co., 370 So.2d 212 (La.App. 3rd Cir.1979), writ denied, 371 So.2d 1342 (La.1979); Conlay v. Houston General Ins. Co., 370 So.2d 196 (La.App. 3rd Cir.1979).

In two recent cases, the Supreme Court found claimants to be partially disabled when work-related injuries prevented them from performing significant physical tasks which were expected by their employers and important to the effective performance of their work, even though the physical tasks required were incidental to the main employment.

Applying the above to the facts of this case, we conclude that the trial court’s finding that plaintiff is permanently partially disabled is correct. The plaintiff testified that his arm swells and is painful when he attempts to use his arm in performing certain tasks required of a carpenter. Numerous witnesses for the plaintiff stated that they knew plaintiff was unable to perform some aspects of carpentry work because of his arm. Plaintiff’s usual and customary occupation is carpentry which requires the use of his right arm. With the disability plaintiff suffers, he has difficulty swinging a hammer, using a saw, climbing a ladder, or moving the heavy materials used in the carpentry business. Two of plaintiff’s witnesses testified regarding the unusual physical exertion necessary in carpentry work, and as to the observable pain plaintiff experiences when he attempts to use his right arm in performing certain carpentry tasks. Since the time plaintiff has been employable, he has been involved in work requiring exertion, usually carpentry work, which necessarily requires the use of two good strong arms. Because of the accident which plaintiff suffered on December 13, 1978, he has been limited in the use of his right arm, experiencing some pain, which is accompanied by local swelling around the wrist.

Physical inability to return to work and inability to return to work due to substantial pain are questions of fact, the determination of which was made by the trial court, and will not be disturbed unless clearly wrong. Crump v. Hartford Acc. & Indem. Co., 367 So.2d 300 (La.1979); Kelly v. International Union, Etc., 386 So.2d 1060 (La.App. 3rd Cir.1980).

We do not agree with the insurer’s argument that plaintiffs injury falls only under LSA-R.S. 23:1221(4)(o) for the loss of a function of a limb. The disability provisions and the specific loss provisions are parallel remedies designed to compensate an employee for his loss of earning capacity. Where an employee can show that the physical injury from which he is suffering causes appreciable employment disability, the employee is allowed to recover under which provisions affords him greater compensation. Jacks v. Banister Pipelines America, 418 So.2d 524 (La.1982); Farrar v. Guy Atkinson Company, 325 So.2d 893 (La.App. 2d Cir.1976); 2 Larson, Workmen’s Compensation Law, § 58.25 p. 10-285.

We find the evidence supports the trial court’s conclusion that plaintiff is permanently partially disabled as a result of a work-related accident which prevents him from performing all the duties in which he was engaged when injured as well as those for which he is fitted by education, training, and experience. The back injury suffered by the plaintiff as a result of the automobile accident, although providing perhaps another disability for this plaintiff, is not an intervening and superceding cause of plaintiff’s disability.

The trial court properly granted the insurer a credit for the 150 weeks at $141.00 per week previously paid to the plaintiff under the specific loss provision. This credit is effected by shortening the period during which partial disability compensation is payable by the number of weeks compensation was paid under the schedule. Jacks v. Banister Pipelines America, supra; Stracener v. U.S. Fidelity & Guaranty Co., 420 So.2d 1101 (La.1982).

When a claim for penalties and attorney’s fees is levied against the insurer, LSA-R.S. 22:658 requires that the failure of the insurer to pay compensation, or the discontinuance thereof, be arbitrary, capricious and without probable cause in order to justify imposition of such penalties and at-tomey’s fees. This statute is penal in nature and therefore must be strictly construed. The burden of proof is on the claimant to prove that the failure to pay or the discontinuance of payments is arbitrary, capricious, and without probable cause. Breaux v. Marine Elec. & Reliance Ins. Co., 369 So.2d 196 (La.App. 3rd Cir.1979), writ refused, 371 So.2d 1344, (La.); Henley v. F.G. Sullivan, Jr., Contractor, 385 So.2d 497 (La.App. 1st Cir.1980). In determining whether the discontinuance of compensa^ tion payments was “arbitrary, capricious, and without probable cause,” we must examine the facts existing and known to the insurer at the time payments were ceased. Arthur v. McConnell, 286 So.2d 499 (La.App. 2d Cir.1973).

The termination of compensation payments was based on the medical reports of one of plaintiff’s treating physicians, Dr. Riordan, which reported that plaintiff was able to return to work as a carpenter. This opinion was also shared by the primary treating physician, Dr. Rills. Testimony revealed that the defendant chose to pay plaintiff full compensation under LSA-R.S. 23:1221(4) for loss of an arm, even though medical reports revealed that plaintiff was able to use his right arm,, subject to a “maximum” 20% disability of the arm. Defendant’s actions in terminating payment of worker’s compensation based upon all medical evidence available was justified and thus cannot be said to be “arbitrary, capricious, and without probable cause.” Thomas v. McInnis Bros. Const., Inc., 401 So.2d 522 (La.App. 2d Cir.1981). The dispute over the extent of plaintiff’s disability involves a conflict between the medical evidence and reports and the testimony of the plaintiff and his witnesses concerning his inability to perform all duties of carpentry work because of the injury to his right wrist and forearm. It is well established that an insurer cannot be penalized by taking close factual questions to the courts for decision and for relying upon a valid defense. Dupont v. Ebasco Services, Inc., 411 So.2d 605 (La.App. 4th Cir.1982).

The trial court was clearly wrong in finding defendant’s withholding of additional compensation payments as being arbitrary, capricious, and without probable cause, and awarding penalties and attorney’s fees.

For the foregoing reasons, we affirm that portion of the trial court judgment which found that plaintiff is entitled to workmen’s compensation benefits for permanent partial disability at the rate of $141.00 per week for a maximum of 450 weeks, subject to a credit for the 150 weeks defendant has previously paid. Legal interest shall accrue on all past due installments owed from date due until paid. We reverse the trial court judgment awarding penalties and attorney’s fees.

Costs of this appeal are to be paid one-half by appellant and one-half by appellee.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . Although the proceeding carries the caption “Joseph H. Patin, Jr. versus Continental Casualty Company,” the proper defendant is “Continental Insurance Company.” This correction was made in plaintiffs amending and supplemental petition filed on November 16, 1981.

      . Dodd v. Nicolon Corporation, et al., 422 So.2d 398 (La.1982); Naquin v. Uniroyal, Inc., 405 So.2d 525 (La.1981).


text:
    Genevieve SMITH, et al. v. Rev. I. Henderson RILEY, et al.
    No. 82 CA 0306.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Joseph L. Waitz, Houma, for plaintiffs and appellees.
    Robert H. Marve, III, Houma, for defendants and appellants.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is a suit for injunctive relief filed by certain members of the New Mount Zion Baptist Church seeking to prohibit the defendants from entering the premises of the church and from participating in any functions of the church until such time as an election could be called by the members of the church to elect a new Board of Trustees according to the provisions of the church charter. Defendants are Rev. I. Henderson Riley, pastor and ex-officio member of the Board of Trustees, and other members of the Board of Trustees who were appointed to the Board by the pastor.

The petition for injunction was filed on January 11, 1982. On January 15, 1982, a temporary restraining order was issued ordering that the defendants be prohibited from preventing plaintiffs and other church members from having unencumbered rights of ingress and egress to attend Sunday church functions and ordering defendants to open the church on Sundays.

Among several exceptions filed by defendants was an exception to the subject matter jurisdiction of the court. This exception was dismissed along with other exceptions on January 20, 1982. Trial on the merits was begun also on that date. Written reasons for judgment were filed by the trial judge on February 11, 1982. On February 18, 1982, judgment was signed which ordered the following: (1) That Rev. I. Henderson Riley, pastor, of the New Mount Zion Baptist Church notify the congregation that an election would be held on the second Sunday after the effective date of the judgment to elect the entirety of the Board of Trustees; (2) that the election be conducted in accordance with the rules provided in Roberts Rules of Order (sic); (3) that all adult members of the congregation who had paid six months’ dues, consecutive or otherwise, during the calendar year of 1981, would be permitted to cast a vote; and, (4) that Mr. H. Minor Pipes, Attorney at Law, be appointed Master to ascertain the eligibility of the voters and to provide an open forum for the nomination of candidates and to further insure that the votes are cast and counted in a democratic manner with results verified and promulgated.

A motion and order for a suspensive appeal was signed by the trial judge on February 26, 1982, and bond was fixed in the amount of Five Hundred Dollars ($500.00). Bond was not timely filed, and on April 7, 1982, plaintiffs filed a rule to show cause why the defendants’ suspensive appeal should not be dismissed since the legal delays for furnishing bond had passed and defendants had not furnished bond; why the appeal should not be considered a devol-utive appeal; and why the election, as called for in the original judgment, should not be conducted on Sunday, April 18,1982. Bond for the suspensive appeal was furnished and filed in the record on April 12, 1982. On April 15,1982, the day of trial on the rule, defendants filed a declinatory exception on the ground that the court was without jurisdiction to hear the rule because the trial judge had already signed the order of appeal.

The court found that the bond fixed in the order of appeal was not posted timely in accordance with LSA-C.C.P. arts. 1974 and 2123. The trial court dismissed the suspen-sive appeal and ordered that the appeal be continued as a devolutive appeal. The court further ordered that the election taken place on April 25, 1982.

Defendants next applied for writs on the judgment of the rule which were denied on April 22, 1982.

The case is now before this court on devolutive appeal. Appellants urge three specifications of error.

SPECIFICATIONS OF ERROR

1. The trial court erred in refusing to sustain appellants’ exception of lack of jurisdiction over subject matter relative to ap-pellees’ original petition for injunctive relief.

2. The trial court erred in refusing to sustain appellants’ exception of lack of jurisdiction over subject matter relative to ap-pellees’ rule to show cause.

3. The trial court erred by modifying the substance of the original judgment.

SPECIFICATION OF ERROR NO. 1

The substance of this specification of error is that plaintiffs’ original petition describes basically an internal controversy over church policy, administration, and implementation of church doctrine and principle and thus civil courts do not have subject matter jurisdiction.

At the trial on the merits, the trial judge found the following:

“Considering the evidence adduced, it is evident that for at least the past twenty years, the membership of the Board of Trustees has not been filled by election of the congregation, as provided for in the Articles of Incorporation, but rather by appointment of the Pastor, sometimes with the ratification of the Board of Trustees and also on occasion with ratification by the congregation. This custom and practice has departed from the Articles of Incorporation.
At the last meeting a novel situation developed wherein an apparent majority of the congregation present disagreed with some of the actions of the Board and of the Pastor. Neither custom and practice nor the Articles of Incorporation provide for this eventuality. Failing to find a solution to the problem of effectuating the will of the apparent majority of the congregation (stockholders) in either the Articles of Incorporation or the previous custom and practice of the Church, the Court is drawn inexorably to the conclusion that in order to provide an equitable solution the court will have to order and does hereby order that an election be held by which a new Board of Trustees shall be elected. Article III of the Articles of Incorporation, however bereft of provisions for contingencies the Church now faces, is clear as to its requirement of congregational assent in the staffing of the Board of Trustees. Recognizing this fact, the Court feels that an election is mandated.
While it is claimed by defendants that the termination of the rights of the female members of the congregation to participate in the temporal matters of the Church has biblical authority, that action also flies in the face of the Articles of Incorporation which defines shareholders and which articles do not permit limiting the rights of any shareholders by either the Board of Trustees or the Pastor. The Court will therefore declare the action of the Board of Trustees which limits participation of female members of the Church to be invalid, at least civilly.
The Court also finds the action of Reverend Riley, acting alone and without any authority other than his own, in removing some 29 members of the stockholders or congregation from the Church to be invalid.”
“The Court cannot and will not address itself to matters or pass judgment on the legitimacy of those acts which are strictly within the purview of Church doctrine and religious policy formation or implementation. The First Amendment of the United States Constitution, as interpreted by the Courts, wisely prohibits such an intrusion into the spiritual machinations of a religious institution. Therefore, the Court has restricted itself to providing a means by which this organization, as an incorporated entity, may by means of an election, a vehicle the organization has provided for itself in its articles, resolve the current dispute.”

Article III of the Articles of Incorporation provide as follows:

“The congregation shall elect a board of trustees once a year, to be composed of ten (10) members, and the minister shall in addition to said ten members also be ex-officio a member of said board, and shall be the president thereof, making 11 members in all. Said Board shall be elected on Friday before the first Sunday in each year, by the members of the congregation of said Church, who shall be members of this corporation. Said Board shall organize, and shall elect a Clerk and also a Treasurer, who shall be members of the congregation, but may be members of the Board of Trustees also. The said Trustees shall be elected according to the customs and usages of said Church, and the manual provided by said Church. The same Board shall hold over from year to year without a new election, or until their successors are elected and qualified, with the assent of the congregation; provided that one fourth of the members of said congregation shall be entitled to call an election for a new Board of Trustees on the date appointed above, by written petition signed by one fourth of the members of said congregation presented to the pastor and president at least seven days previous to the date fixed herein for said election.”

Appellants argue that courts are precluded from acting in this case by the United States Constitution, Amendments I, XIV and the Louisiana Constitution, Article 1, § 8. Appellants cite numerous cases for the proposition that religious bodies may decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 2379, 49 L.Ed.2d 151 (1979); Jones v. Wolf, 443 U.S. 595, 596, 99 S.Ct. 3020, 3022, 61 L.Ed.2d 775 (1979); Bourgeois v. Landrum, 396 So.2d 1275 (La.1981); Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 (1872).

There are essentially three matters in this case which must be examined: (1) the order to elect a new Board of Trustees; (2) the Court’s determination that the action of the Board of Trustees in limiting participation by female members of the Church was invalid; and, (3) the Court’s determination that the action of Rev. Riley in removing twenty-nine members of the congregation was invalid.

The trial court had the authority to determine whether the Board of Trustees was legally constituted and to issue such orders necessary to enforce the church’s compliance with its own Articles of Incorporation. In Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1st Cir.1980), this court was faced with a similar factual situation. We said, at page 197, the following:

“..., when a nonprofit religious corporation has established itself by a charter and has provided in the charter the time and method of electing its board of directors, the issue as to whether or not the board of directors has been validly elected according to the charter is a question cognizable by the civil courts of this state. The procedural niceties attending the election of a board of directors for a non-profit religious corporation have nothing to do with religious law, custom or policy and are not ecclesiastical matters within the exclusive domain of a particular religious group. A church member who claims that the board of directors was not elected according to the procedures set forth in the charter has a right to have his claim heard by a civil court in this state.” (Cites omitted)

Appellants argue that it was the custom of the church to allow members of the Board to serve from year to year without the necessity of an election. It is true that the article does provide that the “same Board shall hold over from year to year without a new election, or until their successors are elected and qualified, with the assent of the congregation,... This clause does not, however, provide that new members of the Board, appointed by the pastor and never voted on by the congregation, may legally serve with the assent of the congregation. The article clearly provides in the first sentence that “(t)he congregation shall elect a board of trustees . .. ”. There is evidence that the congregation had given assent to all actions of the Board for many years prior to 1982 (assent was not given in 1982). This assent is enough to continue duly elected members in their Board positions, but it cannot substitute for an election of new members. Neither the Articles of Incorporation nor any other authority allows for the pastor to appoint members of the Board of Directors.

It is also true that there is a reference to custom and usage in Article III, but that reference is ambiguous and probably refers to how the election should be conducted. The clear intent of the article is to provide for election of new members of the Board by the congregation and for yearly assent to maintain the members of the Board in office. It is evident that for at least twenty years the membership of the Board has not been filled by election of the congregation. It is also evident that absent a suit in civil court, the congregation would have no other means of enforcing the mandate found in the Articles of Incorporation. Since the date set for the election by Article III had passed, it fell to the court to provide a new date to fullfill the intent of the article. An election was properly ordered by the trial judge.

In his reasons for judgment, the trial judge declared invalid the actions of the Board of Trustees which limited participation by female members of the church. The Articles of Incorporation do not differentiate between male and female members of the congregation. At trial no evidence was presented to establish church doctrine or policy that limited participation by female members. In the absence of any evidence of specific church doctrine to the contrary, we must conclude that females, as members of the congregation, are members, also, of the corporation and as such are entitled to the same rights and privileges as male members of the corporation. Additionally, we have said that the defendant members of the Board of Trustees were not duly elected by the congregation. Since these members were holding office illegally, they could not validly act on behalf of the corporation. See State ex rel. Nelson v. Ellis, 140 So.2d 194 (La.App. 4th Cir.1962), writ denied, 151 So.2d 544 (La.App. 4th Cir.1963).

The trial court next found that the action of the pastor in removing twenty-nine members of the congregation was invalid.

This court has held that church members are not entitled to rely on the incorporation of a church under state laws as the basis for resort to civil courts for redress of allegedly violated rights, if these rights require a determination of eeelesiastial matters. Macedonia Baptist Foundation v. Singleton, 379 So.2d 267 (La.App. 1st Cir.1979); Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir.1977). However, such is not the situation presented in the instant case. The pastor, Rev. Henderson Riley, acted with no authority whatsoever in removing these twenty-nine members. No evidence was adduced to show authority in church law, doctrine, dogma or practice for his actions; nor is any authority found in the Articles of Incorporation. The evidence does establish that the removal of these members, as well as the disenfranchisement of female members, was the result of the efforts of a minority group of the church (including the pastor and certain members of the Board of Trustees) to impose their will on the majority, who questioned their authority to do so. As stated in Fluker Community Church v. Hitchens, 419 So.2d 445 (La.1982), at page 447,

“As part of its neutral principles analysis, a state may adopt a presumption that, absent some indication to the contrary, a voluntary religious association is represented by a majority of its members.” (Emphasis added)

We find the unilateral, authoritative actions of the pastor and his “appointed Board members” to be in conflict with the intent of Article IY of the Articles of Incorporation which read as follows:

“This corporation .... shall be authorized and empowered to make rules, bylaws and ordinances, and do everything needful for its good government and support not repugnant to the Constitution and laws of the United States, to the Constitution and Laws of this State, to the instrument upon which this corporation is formed and established, or to the laws and regulations of the BAPTIST CHURCH not in conflict with this act.”

The intent expressed in this article is for the congregation to make the rules by which the church is governed, as long as the rules are not repugnant to the Constitution and laws of the United States and the State of Louisiana, the charter, and the laws of the Baptist Church. Clearly, the pastor usurped the authority given to the congregation in this article.

We are not presented with a situation in which expulsion from the church is a matter of interpretation of church doctrine or policy or is a matter of ecclesiastical concern. The members did not either ecclesiastically or civilly submit themselves to be bound by the unilateral actions of the pastor. As members of the congregation, they acquired the rights, privileges, and duties of all members of the congregation as evidenced in the charter. Their expulsion was illegal and unauthorized, and thus, the decision of the trial court to reinstate them was correct.

SPECIFICATION OF ERROR NO. 2

Appellants’ second specification of error is that the trial court had no jurisdiction to hear appellees’ rule to show cause because an order of appeal had been signed which vested jurisdiction of the case in the Court of Appeal.

LSA-C.C.P. art. 2088 reads as follows:

“The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attached, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal.”

The appeal bond is an increment of jurisdiction in the appellate courts, and this jurisdiction does not vest until the timely filing of the appeal bond. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976). Appellants obtained an order for suspensive appeal. It is undisputed that the bond was not timely filed. Because bond was not timely filed, the trial court continued to have jurisdiction over the case and had full authority to dismiss the appeal as suspen-sive and continue it as devolutive. See Knox v. Brown, 325 So.2d 295 (La.App. 3d Cir.1976).

SPECIFICATION OF ERROR NO. 3

Appellants contend that the judgment was effective February 18, 1982, and that since no election was held on the second Sunday thereafter, the trial judge could not subsequently set a new date because to do so was to alter the substance of the judgment in violation of LSA-C.C.P. art. 1951.

The trial court judgment of February 18, 1982, reads as follows:

“That the Rev. I. Henderson Riley be, and he is hereby, ordered to notify the congregation of the New Mount Zion Baptist Church that there will be an election on the second Sunday after the effective date of this judgment to elect the entirety of the Board of Trustees.”

The trial judge held that the order of suspensive appeal suspended the effective date of the judgment and that when the order of suspensive appeal was vacated, only then did the judgment become effective. He thus set a new date for the election, April 25, 1982, which was the second Sunday after the date the suspensive appeal was vacated and the original judgment became effective.

Nothing substantive was altered in the second judgment. The trial judge exercised the clear authority given to him under LSA-C.C.P. art. 2088(7) which reads as follows:

“The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to ...
(7) Execute or give effect to the judgment when its execution or effect is not suspended bv the appeal.” (underlining by the court)

The execution or effect of the judgment of February 18, 1982 was no longer suspended by the order of suspensive appeal. The trial judge thus had the authority to execute and give effect to that judgment by setting a new date for the election. The trial judge took a common sense, reasonable approach to the problem presented and clearly followed the express law.

For the above reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . Developments In The Law, 1980-1981—Louisiana Civil Procedure, 42 La.L.Rev. 676 (1982).