author: DOMENGEAUX, Judge.

text:
    Charles L. CHAMBERS et ux., Plaintiffs-Respondents, v. ORTHO PHARMACEUTICAL CORPORATION, Defendant-Applicant.
    No. 7711.
    Court of Appeal of Louisiana, Third Circuit.
    March 25, 1980.

      Adams & Reese Henry B. Alsobrook, Jr. and Donna L. Yukna, New Orleans, for defendant-applicant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock Robert W. Clements, Russell T. Tritico, Lake Charles, for plaintiffs-respondents.
    Before DOMENGEAUX, GUIDRY, and FORET, JJ.
   DOMENGEAUX, Judge.

Upon application by Ortho Pharmaceutical Corporation, this Court issued a supervisory writ to decide whether the trial court erred in ordering Ortho to further respond to certain interrogatories propounded by plaintiff. Based solely on information contained in Ortho’s writ application, this Court granted the writ. Our primary concern was that the trial court order compelling additional answers, requiring Ortho to pay costs, and possibly subjecting Ortho to an imminent contempt citation for refusing to comply with the trial court’s order, may have been oppressive or unreasonable. Since such an order is not appeal-able, Ortho’s only remedy was to apply for supervisory writs. Advertiser, Division of Independent, Inc. v. Tubbs, 199 So.2d 426 (La.App. 3rd Cir. 1967).

After a careful review of the events preceding this pretrial impasse, and of the applicable law, we conclude that the writ was providently granted and that Ortho is entitled to relief notwithstanding its rather questionable pre-trial tactics.

Familiarity with the chronology of events will facilitate an understanding of our resolution of the issues. Plaintiff, Charles L. Chambers, filed a wrongful death action against Ortho and other defendants on November 14, 1978. On September 7, 1979, plaintiff mailed 63 interrogatories to Ortho to answer. Twenty-three days later, on October 1, 1979, Ortho motioned the court for an extension of time within which to answer and/or object to the interrogatories. The motion was signed by Judge Bond, but was revoked by him later the same day (October l). Undaunted by this minor setback, Ortho, one week later (October 8), petitioned another judge from the same district (Judge King) with a similar request for an extension of time. Judge King, apparently unaware of Judge Bond’s recent refusal of the same request, signed the motion. On October 12th, Ortho was ordered to show cause on October 30th why the October 8th order should not be recalled. Before this rule was heard, however, Ortho, on October 25th answered most of the interrogatories and objected to the remainder as being unduly burdensome .and beyond the scope of discovery.

On October 30th, the October 8th order granting Ortho an extension of time within which to answer or object was set aside. On November 2nd, defendant was ordered to show , cause why it should not be required to answer fully all interrogatories and pay all reasonable expenses imposable under La.C.C.P. Article 1469. Hearing on this rule was held January 3,1980, at which time Ortho was ordered to answer fully and completely interrogatories numbered 32, 33, 35,55, 56, and 60 (all of which had previously been answered or objected to on October 25) within ten days of January 3rd. This judgment was signed by Judge King on January 28th, fifteen days after defendant was supposed to have complied with the rule.

On February 5th, plaintiff filed a rule to impose sanctions and contempt as provided by La.C.C.P. Article 1471, due to defendant’s failure to comply with the court order. Hearing was fixed for February 15th. This writ was applied for and granted before the February 15th hearing was held. The January 3rd order and the rule for La.C.C.P. Article 1471 sanctions were stayed by this Court pending determination of the writ. The matter was submitted on March 4, 1980.

Defendant Ortho asks this Court to relieve it of the burden of further answering interrogatories numbered 32, 33, 35, 55, 56, and 60. Defendant claims that interrogatories 32, 33, 35, and 60 have already been fully answered; and that 55 and 56 are overly broad, are beyond the scope of discovery, and are completely answerable only at great expense to defendant. The subject interrogatories and the answers and/or objections given by Ortho are quoted in full below:

“Interrogatory No. 32:
Is Ortho-Novum 1/50-28 recommended by the manufacturer to be used to treat dysfunctional uterine bleeding, in a patient 17 years of age, with a history of renal disease (Hematuria)?
XXXII. [32]
Defendant, Ortho Pharmaceutical Corporation, is the manufacturer of an ethical drug and not a treating physician and, therefore, leaves such matters to the professional judgment of the treating physician.
Interrogatory No. 33:
If the product is ever used for the treatment of dysfunctional uterine bleeding, please state:
a) The conditions when it may be used,
b) The dosage, or what factors determine dosage,
c) Preliminary studies by the physician, if any,
d) Precautions to be given to the patient by the physician,
e) Follow-up studies, if any; by .the physician,
f) For what period of time,
g) Contraindications to be wary of after the initial dosage.
XXXIII. [33]
See answer to XXXII. [32]
Interrogatory No. 35:
State in detail what facts, tests, preliminary work-up or history should the doctor utilize prior to placing a 17 year old female on this product (Ortho-Novum) solely for the purpose of regulating her' menses.
XXXV. [35]
See answer to XXXII. [32]
Interrogatory No. 55:
Please list in chronological order the names and addresses of all persons who have received or claim to have received injuries resulting or suspected by them or their physician to have resulted in the use of Ortho-Novum or similar products manufactured by you and with respect to each please state:
a) The nature of the injury claimed,
b) The date the defendant first received notice of the injury,
c) The name and address of the attending physician involved.
LV. [55]
This information is available in the NDA which is on file with the Food & Drug Administration in Washington, D. C., as well as with the Ortho Pharmaceutical Corporation, as more specifically set out in the attached NDA answer.
NDA ANSWER [to 55 and 56]
Defendant objects to this interrogatory in that it is overly broad and unduly burdensome. With respect to the New Drug Application for the relevant time period, for the dosage allegedly used by the plaintiff, and with respect to the injuries allegedly sustained by plaintiff, defendant states that whatever information Ortho has concerning this interrogatory is disclosed in defendant Ortho’s New Drug Application filed with the Food and Drug Administration, United States Department of Health, Education and Welfare, Washington, D. C. and numerous volumes of correspondence between defendant Or-tho and the Food and Drug Administration subsequent thereto. Because of the great bulk of this material it would be unreasonable, burdensome and oppressive for Ortho to produce these volumes except for such files as are regularly maintained by defendant at its place of business in Raritan, New Jersey. The N.D.A. and supplements thereto consist of numerous volumes containing thousands of pages. There is only one complete set of the N.D.A. and pursuant to federal law it must be retained in Ortho’s home office. The Food and Drug Administration has the right to make and does make spot inspections of the N.D.A. from time to time, and the N.D.A. must be in the home office and up to date in order to comply with these inspections. If the N.D.A. were removed, Ortho could face a possible removal from the market of products covered by the N.D.A. The N.D.A. is a living document and is added to on a daily basis and is in constant use by Or-tho in the day-to-day conduct of its business. To answer this interrogatory would require defendant to analyze and summarize the N.D.A. which would require a great deal of time and work on behalf of the defendant. A copy of the relevant portions of the N.D.A. will be made available for inspection by plaintiff at Rari-tan, New Jersey pursuant to an' appropriate protective order entered by the court limiting use of this material to this litigation and the parties thereto. This information is also available through the Freedom of Information Act and the Food and Drug Administration, Unitéd States Department of Health, Education and Welfare, Washington, D. C.
Interrogatory No. 56:
If any lawsuits have been filed against the defendant for injuries or death from the use of this product, please state with regard to each such lawsuit:
a) Its nature,
b) The day it was filed,
c) The place it was filed,
d) The court in which it was filed and its docket number,
e) The judgment or settlement reached,
f) The name, title and address of each employee or agent of the defendant who testified at the trial or gave a deposition,
g)The name, title and address of each expert witness who testified on behalf of the defendant either in court or by deposition.
LVI. [56]
See answer to interrogatory LV. [55]
Interrogatory No. 60:
If it is the contention of the defendant that the alleged occurrence was caused or contributed to by some act or omission of Virginia Ann Chambers, please state in detail each act or omission which it is contended caused or contributed to cause the alleged death of said Virginia Ann Chambers.
LX. [60]
None known at this time.”

Ortho has indicated it is willing to make all applicable records available for plaintiff’s inspection and copying at defendant’s place of business in New Jersey. This change in discovery methods is allowed under La.C.C.P. Article 1460.

Plaintiff, on the other hand, asks us to first consider the prelude — the series of dilatory tactics engaged in by defendant prior to the interlocutory order of January 3rd. Specifically, plaintiff contends that defendant waived any right to object to the interrogatories when it failed to answer the interrogatories within the fifteen days required by Article 1458. Thus, plaintiff asserts, defendant has no right to refuse to further answer the interrogatories or to comply with the court order.

We disagree with plaintiff’s contention that defendant waived its right to answer or object to the interrogatories when it failed to do so within the fifteen day answer period provided in La.C.C.P. Article 1458. We interpret that Article to mean that if the interrogated party does not answer or object to the interrogatories within fifteen days, he is exposing himself to the risk that the party propounding the interrogatories will take advantage of La.C.C.P. Article 1469 by filing a rule to compel the delinquent party to furnish the answers. As long as the party awaiting the answers does not avail itself of the right to compel answers under Article 1469, the interrogated party is free to respond and/or object to the interrogatories without waiving any rights.

This situation is analogous to one in which a defendant fails to answer or otherwise respond to plaintiff’s petition within fifteen days. This failure then exposes the defendant to the risk that the plaintiff will obtain a default judgment against him. But as long as the default judgment is not entered against the defendant he is free to file exceptions or to answer the petition.

A similar set of circumstances existed in Trainor v. Young, 348 So.2d 1004 (La.App. 2nd Cir. 1977), writ denied 351 So.2d 169 (La.1977). There, plaintiffs failed to timely answer defendants’ interrogatories, and on April 13, 1977, the District Judge ordered plaintiffs to show cause why answers should not be filed by April 25th, or have their suit dismissed. On April 21st plaintiffs answered all but one of the questions. The answer to this question, plaintiffs asserted, was not discoverable and they sought a protective order to that effect. The court denied their protective order and plaintiffs filed for writs, which were granted by the Second Circuit.

The Second Circuit reversed the trial court and granted the protective order, holding that plaintiffs did not waive their right to object to the interrogatories since the interrogatories were answered prior to the return date of the rule to show cause and since the plaintiffs moved for a protective order pursuant to La.C.C.P. Article 1426.

In our case, the plaintiff never filed a rule to compel answers until after the interrogatories had been answered or objected to on October 25, 1979. Although plaintiff objected to the order granting defendant an extension of time, nothing in the law requires that this extension be asked for within the initial fifteen day time limit. Nor does the law preclude the trial judge from granting such an extension of time, even if the request is made after the fifteen day time period. Inasmuch as the answers and objections were filed prior to any order to compel answers, and were filed while the extension order was still in effect, we feel that the plaintiff’s claim that Ortho waived its right to answer and/or object is without merit.

Now that we have decided that defendant’s answers and objections were timely, we conclude that its answers to questions 32, 33, 35, and 60 are sufficient, and that its objections to questions 55 and 56 are well founded.

Interrogatories 32, 33, and 35 are concerned with the possibility that Ortho’s product, Ortho-Novum 1/50-28 is recommended by the manufacturer for some use other than as a contraceptive. To our minds, the answers to these questions are complete and are best summarized by Or-tho’s answer to interrogatory 31, an answer that is not in dispute:

QUESTION:
“31. What conditions does the product and similar products purport to treat or provide?”
ANSWER:
"Its only approved indication is for contraception.”

The answers to 32, 33, and 35 express quite plainly that Ortho is not in the business of recommending Ortho-Novum 1/50-28 for use other than as a contraceptive; that if the product is used for other purposes, prescribing physicians would best know the circumstances under which the recommendation for non-contraceptive use (such as the treatment of dysfunctional uterine bleeding) is made.

Interrogatory 60 was also fully answered. When asked to specify which acts or omissions of the deceased constituted contributory negligence (if that defense was to be used by Ortho) Ortho replied that it knew of none at the time of answering. It is difficult to imagine how a more complete answer could be supplied.

All of, the answers to interrogatories 32, 33, 35, ana 60 are subject to the continuing nature of the interrogatories (as provided in interrogatory number 63) and must be supplemented if further information is obtained by the defense.

The objections to questions 55 and 56 should have been considered by the trial court since the objections were timely. It appears, though, that the judge felt Ortho waived its right to object and, hence, did not adequately consider the merits of Or-tho’s objections to certain interrogatories. Therefore, this case must be remanded for the taking of evidence to ascertain the validity of the objections to questions 55 and 56; the possible extent of the burden placed upon defendant by requiring it to answer; and to issue the appropriate protective order pursuant to La.C.C.P. Article 1426 if the court finds that the defendant would be subjected to undue burden or expense if it was forced to answer.

The order awarding plaintiff $150.00 as attorney’s fees and all costs incurred in connection with his motion to compel answers is set aside since the motion was made after answers and interrogatories had already been filed.

For the above and foregoing reasons, the interlocutory judgment of the District Court ordering defendant, Ortho, to answer fully and completely interrogatories numbered 32, 33, 35, 55, 56, and 60 within ten days of January 3, 1980, and further ordering Ortho to pay $150.00 in attorney’s fees as well as all costs of the motion to compel answers is set aside and it is hereby ordered that defendant’s answers to interrogatories numbered 32, 33, 35, and 60 are sufficient subject to the continuing nature of the interrogatories. It is further ordered that the case be remanded to the District Court for the purpose of taking evidence on the validity of defendant’s objections to interrogatories numbered 55 and 56. All costs of these proceedings are assessed one-half to plaintiff and one-half to defendant, Or-tho.

REVERSED AND REMANDED.

      . As authorized by Article 5, Section 10 of the Louisiana Constitution of 1974, La.C.C.P. Article 2201, and Rule XII of the Uniform Rules of the Courts of Appeal.

      . We reiterate that the granting of this writ application in no way signals the demise of our rule that supervisory writs will be issued sparingly. Alexander v. Administrator, Division of

        Employment Security, 302 So.2d 64 (La.App. 3rd Cir. 1974); Greater Baton Rouge Airport District v. Hays, 345 So.2d 66 (La.App. 1st Cir. 1976), writ denied 345 So.2d 897 (La.1977).

      . Plaintiff claims the order was rescinded when Judge Bond was alerted to the dilatory tactics theretofore used by defendant. However, the record does not disclose why the rescission occurred.

      . The trial court’s action was proper. Since the order was not final but was interlocutory in nature and not appealable (See Advertiser, Division of Independent, Inc. v. Tubbs, 199 So.2d 426 (La.App. 3rd Cir. 1967)) the judgment need not have been signed and defendant could have sought supervisory writs prior to the signing of the judgment. Also, La.C.C.P. Article 1914 dispenses with the requirement to send notice of an interlocutory judgment unless the matter is taken under advisement and a request for notice has been made. Here, the interlocutory order was rendered in open court, so no notice was necessary even though it was requested.

      . “Art. 1460. Option to produce business records
      Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, or from a compilation, abstract, or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries.”

      . “Art. 1458. Interrogatories to parties; procedures for use
      Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons' for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, arid objections if any, within fifteen days after the service of the interrogatories, except that a defendant may serve answers or objections within thirty days after service of the petition upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Article 1469 with respect to any objection to or other failure to answer an interrogatory.”


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Jeanne E. BUCKLEY, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY, et al., Defendants-Appellees.
    No. 14085.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.

      Northwest Louisiana Legal Services by Don C. Brown, Shreveport, for plaintiff-appellant.
    Weimer, Piper & McGraw by Marion Weimer, Baton Rouge, for defendants-ap-pellees.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   PRICE, Judge.

This is an appeal by a former employee of T. G. & Y., Inc., from a judgment of the district court which upheld the administrative determination that she was ineligible for unemployment benefits.

Jeanne E. Buckley was employed by T. G. & Y. from August 1975 until April 1976. She worked at the service desk handling customer complaints and various other duties. On April 29,1976, she made a claim for unemployment benefits and in her application stated that she left, her job on April 9, 1976, because the store manager, Louis Munn, intentionally and deliberately harassed her and treated her unfairly whenever the opportunity presented itself. The agency’s determination disqualifying claimant for unemployment benefits under La. R.S. 23:1601(1) was based on a finding that she left her employment without good cause connected with her work after being warned about her attitude. This finding was affirmed by the appeals referee, the board of review, and on judicial review by the district court.

The sole issue on appeal is whether there was sufficient evidence to support the finding that the claimant quit her employment without good cause.

Mrs. Buckley contends that she had good cause to quit her job at T. G. & Y. because her working conditions were made unbearable by the store manager. Her principal complaints were:

(1) The store manager focused the shoplifting surveillance camera on appellant for extended periods of time while she worked at the service desk;
(2) He informed her that she was not allowed to select Friday as her day off because she was office personnel, but nevertheless he refused to pay her the wage scale for office personnel;
(3) She never received a merit raise as did the other employees of T. G. & Y.;
(4) Her day off was changed each week while the other employees were allowed to take the same day off each week;
(5) The manager had her followed when she shopped in the store;
(6) When she came on duty the manager removed the employees’ purses from the service desk insinuating she was not trustworthy; and
(7) She was subpoenaed as a witness in a three-day trial which ended the day before she quit. The manager refused to pay her for this time off even though an employee of another T. G. & Y. store who also was subpoenaed in the same case was paid by her store manager.

Mrs. Buckley’s testimony in support of the above complaints was substantially corroborated by two employees of T. G. & Y. Jeannie Tartarilla testified Mrs. Buckley was an efficient worker who did an excellent job at the service desk. Miss Tartarilla testified that the manager constantly harassed appellant and treated her unfairly. Carol Weir, who worked with Mrs. Buckley for seven months, attested to her good work record and confirmed that appellant was subjected to a great deal of pressure from the manager without provocation. Both these employees cited the above grievances as examples of the conditions and treatment imposed solely upon Mrs. Buckley.

The only evidence presented at the administrative hearing by the employer was the testimony of an assistant manager who had been transferred to the store during the last month of Mrs. Buckley’s employ. He was unable to confirm or deny the assertions of claimant regarding harassment by the manager as most of the incidents alleged occurred prior to his association with this particular T. G. & Y. store. Although he had discussed with claimant her attitude toward customers a few days previous to the termination of her employment, he did not contend this was the reason for her quitting her employment. He further testified she was an efficient worker and had improved her attitude with customers.

The statement in the agency’s findings, “You quit your employment after being warned about your attitude. There is no information available to substantiate that you quit for good cause connected with the employment,” is not supported by the evidence in this record. The employer’s only witness, as already noted, did not contend that claimant quit her job because he asked her to be friendlier with the customers.

The evidence does show, however, that Mrs. Buckley’s reasons for quitting her job at T. G. & Y. involved a series of unfair treatment imposed on her which culminated when the store manager refused to pay her for the days she attended court as a witness.

There is no other testimony or evidence in the record to contradict the testimony of Mrs. Buckley and her two co-employees pertaining to the discriminatory conditions of her employment.

We are mindful of the provision of La. R.S. 23:1634 that:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. [emphasis added]

However, the jurisprudence concerning this and other provisions relating to similar administrative boards have maintained that where there is no substantial evidence to support the decision of the board or where the evidence is vacuous, the court may, if the other evidence so warrants, set aside the ruling of the board. Kansas City Southern Railway Company v. Louisiana Public Service Commission, 254 La. 160, 223 So.2d 132 (1969); Wilson v. Doyal, 319 So.2d 855 (La.App. 1st Cir. 1975); Rankin v. Doyal, 223 So.2d 214 (La.App. 2d Cir. 1969).

We find there is no substantial evidence in the record to support the board of review’s conclusion that claimant left her employment without good cause and therefore hold that she is eligible for unemployment benefits.

For the reasons assigned the judgment appealed is reversed and this matter is remanded to the Board of Review, Department of Employment Security for further proceedings in accordance with law and in conformity with this opinion.


author: MARVIN, Judge.

text:
    Jo Ann Schmidt McCOLE, Plaintiff-Appellee, v. Michael McCOLE, Defendant-Appellant.
    No. 14086.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr., Shreveport, for defendant-appellant.
    Claudius E. Whitmeyer, Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   MARVIN, Judge.

The husband raises two assignments of error on this appeal of a judgment awarding alimony pendente lite and child support.

The husband’s net income is $1300 per month. He is living with a female friend who is gainfully employed. The amount awarded to the wife (who is not employed) and to the minor children (ages 11 and 13) totals $750 a month.

We find no abuse of discretion in these amounts, considering the husband’s means and the needs of his wife and minor children.

The husband’s second assignment is that the lower court erred in not taking into consideration the income of his major children who live in the family home and contribute varying amounts to their mother. The husband argues that the children have the legal obligation to support their mother. This is true when she is in need. CC 229.

The husband overlooks, however, that his legal obligation to support his wife (CC Arts. 120, 1786 and 148) is paramount to the obligation of his children to support their mother under CC 229. See Lyons v. Landry, 293 So.2d 674 (La.App. 1st Cir. 1974).

At appellant’s cost, judgment is AFFIRMED.


author: HALL, Judge.

text:
    SUCCESSION of George E. McLENDON, Sr.
    No. 14088.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.

      Maynard E. Cush, Rollin W. Cole, Jr. by Maynard E. Cush, Shreveport, for defendant-appellant, Carrie Wainwright McLen-don.
    DeLaune & Blondeau by Harvey P. De-Laune and A. L. Blondeau, Bossier City, for plaintiff-appellee, Michael Wayne McLen-don.
    Giddens, McKenzie & Garrett by Wm. Robert McKenzie, Shreveport, for defendant-appellee, George McLendon, Jr.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This appeal is from a judgment ordering that a probated will be executed and that a prior judgment of possession based on the supposed intestacy of the decedent be annulled and set aside. We affirm the judgment of the district court.

George E. McLendon, Sr. died in September 1971, survived by his widow, Carrie Wainwright McLendon, and a son by a previous marriage, George E. McLendon, Jr. On the petition of the widow and son, alleging the decedent died intestate, the succession was opened and Jack H. Kaplan, an attorney and friend of the family, was appointed administrator. After some acts of administration, on the joint petition of the widow, son, and administrator, again alleging intestacy, a judgment of possession was rendered in June 1972. The widow and son were each recognized as owners of an undivided one-half interest in the community property. The widow was recognized as entitled to the usufruct of the son’s one-half interest in the community property in spite of the fact that LSA-C.C. Art. 916 provides for a legal usufruct in favor of the survivor only over the share of the deceased in community property inherited by issue of the marriage between the decedent and the survivor. The son was recognized as the owner of and sent into possession of the decedent’s separate property.

In 1976, after McLendon, Jr. and his wife, Mary, separated, the wife disclosed to their son, Michael Wayne McLendon, the existence of a will executed by the decedent dated January 30, 1968, which the junior McLendons had kept in a safe at their home. The will provided that the widow should receive her undivided one-half interest in the community property. One-third of the decedent’s property was bequéathed in trust for the benefit of his son and the remaining two-thirds of the decedent’s property was left in trust for the benefit of the son’s children. The son had three children, all minors at the time of the decedent’s death. The First National Bank in Shreveport was named as trustee and the widow as co-trustee. The trusts were to last for the lifetime of the beneficiaries and were designated as spendthrift trusts.

In April 1976 Michael filed a petition naming the decedent’s widow and plaintiff’s father as defendants, seeking to reopen the succession, to probate the will, and to set aside the prior judgment of possession. It was alleged that the parties directly participating in the administration of the succession had full knowledge of the existence of the will both prior to and subsequent to the death of the decedent and that plaintiff did not become aware of the existence of the will until March 1976. The defendants were served with citation and ordered to answer the petition within the delay provided by law. Defendants were also served with a rule to show cause why the will should not be probated and the prior judgment of Succession set aside.

The rule was heard with the defendants present. The judge limited this hearing to evidence relating to the probate of the will. The authenticity of the will was established and the will was probated.

Subsequently, the defendant widow filed responsive pleadings, including (1) an exception of no cause or right of action; (2) an exception of improper use of summary procedure; (3) an exception of prescription and/or no cause or right of action; and (4) an answer. An answer in the nature of a general denial was filed on behalf of the defendant, McLendon, Jr.

Trial was held in February 1979. It was established that the will was prepared by Kaplan and the original was delivered by him to the decedent. The son testified he found the will, together with several prior wills, in decedent’s safe shortly after his death. He testified that after a conference with the widow and the attorney, it was decided that the will would not be produced. He took the will home and gave it to his wife to be placed in his safe at his home. He later told his wife to destroy the will and thought she had done so. The wife testified that her husband brought the will home in an envelope after his father’s death, that she did not read the will, and that she put it in the safe and did not destroy it as she had been instructed to do. After the separation from her husband she discussed the matter with her attorney, removed the will from the safe, and delivered it to the attorney or to her son, who had not previously known of the existence of the will. The son testified this was the first knowledge he had of the existence of the will.

The decedent’s widow testified she had no knowledge of the existence of the will, although she knew her husband had made wills in the past. She found no will when she looked after her husband’s death. Ka-plan testified he instructed the widow and son to look for the will after decedent’s death. He, of course, had knowledge of decedent’s signing of the will he prepared in 1968, but testified he had reason to believe the will might have been destroyed because the decedent had changed his will on several occasions, had asked Kaplan to give him his file copy of the will which was done, and had talked to Kaplan about making a new will, which was never done.

During the trial Mary McLendon, as tu-trix of one of the grandchildren who was still a minor, and the other grandchild, who had then become of age, were added as parties plaintiff at the court’s suggestion without objection.

After trial the court overruled all the exceptions, annulled and set aside the prior judgment of possession, and ordered the will previously probated be executed. The defendant widow, but not the defendant son, appealed.

On appeal, the defendant-appellant specifies that the the trial court erred in ordering the will probated and executed and in setting the judgment of possession aside; specifically, in failing to sustain one or more of the exceptions filed by the defendant.

The grounds for the first exception of no cause or right of action were that the petition disclosed no cause or right of action to reopen the succession under LSA-C.C.P. Art. 3393 in that the petition did not allege the discovery of additional property, and the discovery of a will after a succession is concluded is not “any other proper cause” for reopening a succession under the article. The exception is clearly without merit. Discovery of a valid will following the administration of an intestate succession is certainly a proper cause for reopening the succession under LSA-C.C.P. Art. 3393, especially where the circumstances surrounding the succession indicate fraudulent conduct. Presentation of a will, even if the party in possession of the will considers it invalid, is required by law. LSA-C.C.P. Art. 2853. A will shall be admitted to probate if a petition therefor is filed within five years of the judicial opening of the succession. LSA-C.C.P. Art. 2893.

The exception of improper use of summary procedure is also clearly without merit. The probate proceedings were held pursuant to an order and rule to show cause, entirely consistent with LSA-C.C.P. Arts. 2856, 2881, 2882, 2887, and 2890. Defendants were present and actually made no objection to the probate of the will. Thereafter the proceedings were conducted as an ordinary proceeding pursuant to citation and service of process, responsive pleadings, and trial on the merits some three years after filing of the petition.

The combined exception of prescription and/or no cause or right of action is likewise without merit. The grounds for that exception are that this action for nullity of a judgment for fraud or ill practices under LSA-C.C.P. Art. 2004 was not brought within one year of discovery by the plaintiff of the fraud or ill practices as required by the article. Assuming the applicability of the one-year prescriptive period of LSA-C.C.P. Art. 2004 to this action, the evidence firmly establishes that the plaintiff did not learn of the existence of the will and the fraudulent conduct of his father in deliberately withholding the will until the early part of 1976, less than one year prior to the filing of the action to annul the judgment of possession. It was not established, as contended by appellant, that Mary McLendon was aware that the actions of her husband were fraudulent and, in any event, her knowledge at an earlier date would not preclude a later action by the grandchildren who were minors at the time the fraudulent conduct took place and who did not learn of the fraud and ill practices until less than one year prior to bringing suit.

The judgment of possession having been rendered on incorrect allegations and affidavits of intestacy, and a valid will having been discovered and offered for probate within five years from the date of the opening of the succession and within one year after the existence of the will was discovered by plaintiff, the judgment of the district court ordering execution of the probated will and annulling the judgment of possession is correct and is affirmed at appellants’ costs.

Affirmed.

      . The trial court found fraud committed by “one or more persons” in this matter. McLen-don, Jr.’s fraud is clearly established; there is no need to consider whether the evidence established fraud by others. The result would be the same even in the absence of fraud on the part of anyone.


author: McClendon, Judge.

text:
    Herman LaCROIX and Tawana LaCroix, Plaintiffs-Appellants, v. Jacquita Lamb COOK, Defendant-Appellee, Edward L. Florence, Intervenor-Appellee.
    No. 14099.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    Writ Refused May 19, 1980.
    Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III, Shreveport, for plaintiffs-appellants.
    Fish, Montgomery & Robinson by John M. Robinson, Springhill, for defendant and intervenor-appellees.
    Before PRICE, HALL and McCLEN-DON, JJ.
   McClendon, Judge.

This appeal was taken from a judgment awarding legal custody of a 12-year-old boy to his father as intervenor in a custody proceeding instituted initially by the maternal grandmother and step-grandfather against the child’s mother. We affirm.

Custody of this child was awarded to the mother in connection with a 1969 Texas divorce judgment dissolving the marriage between the parents.

The father attempted unsuccessfully to get custody of the boy in Caddo Parish, Louisiana in 1970.

Thereafter for some three years or more the child was in the physical custody of his paternal grandparents with the consent of his mother. Apparently that arrangement terminated only because that grandfather received a serious head injury connected with his timber business.

The mother then took the child to her own mother and step-father to be cared for by them.

By this time both parents had married again. The father and his present wife lived in the state of Missouri for several years.

In October of 1975 while the child, Edward, known in the family as “Bubba”, was living with the maternal grandparents, the mother executed a notarial act giving his custody to her mother, Mrs. Tawana Flowers LaCroix, wife of Herman M. LaCroix, for an “indeterminate period of time” not less than the completion of the 1975-76 school year.

“Bubba” remained in the LaCroix home in the Haughton, Louisiana area for the next-four years and was cared for completely by these grandparents. Neither parent contributed to his support and had very little contact with the child during that period.

Instead of resisting the present suit for custody filed against her, Mrs. Cook joined the child’s father in his intervention and signed a joint motion with him requesting the trial court to award custody to him.

The LaCroix’s appeal raises two issues. • First, they contend the evidence shows that Mr.. Florence had forfeited his right of parental preference to custody and, second, the welfare and best interest of the child dictates that he not be uprooted from a home and community situation that was not shown to be in any manner detrimental to his welfare.

Appellants’ first contention admits, as well it must, that natural parents are entitled to preference in any contest between them, or one of them, and a non-parent for custody of a child.

Counsel for both appellants and appellee cite Wood v. Beard, 290 So.2d 675 (La.1974), in connection with this rule of parental preference and there really is no occasion for extensive citation of further jurisprudence to the same effect.

We find from his oral opinion that the trial court gave due consideration to all the evidence and concluded under the circumstances of this case that there was no forfeiture of the father’s parental preference. Having thus concluded, and further having found both home situations acceptable, he properly refrained from attempting to weigh one home situation against the other to determine which would be in the “best interest” of the child.

Wood v. Beard, supra, very definitely labeled this “weighing” procedure improper in the following language at page 677:

“. . . The best interest of the minor is not served by denying parental custody after deciding which of two qualified, competing family groups can deliver a quality of child custody more pleasing to the court. A judicial comparison of qualified competitors for custody of a child does violence to the rule of ‘parental right.’ .”

We conclude that in the present case there has been no abuse of the much discretion vested in the trial court in child custody cases and its judgment is affirmed at appellants’ cost.


author: JONES, Judge. HALL, Judge,

text:
    John Richard CLARK, III, Individually and on Behalf of Minor, Heather Michelle Clark, Plaintiff-Appellant, v. McDONALD’S SYSTEM, INC., Defendant-Appellee.
    No. 14104.
    Court of Appeal of Louisiana, Second Circuit.
    March 31, 1980.
    En Banc. Rehearing Denied May 13, 1980.
    Writ Refused July 7, 1980.
    J. B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr.-, Shreveport, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

John Richard Clark, III, individually and on behalf of his minor daughter, Heather Michelle Clark, filed, suit on July 7, 1977 against McDonald’s System, Inc. for damages as result of injuries sustained by Heather on August 3, 1976 when she fell in the playground area of McDonald’s restaurant in Bossier City. On March 7, 1978 McDonald’s System, Inc. filed a motion for summary judgment alleging that it did not own, operate or maintain the McDonald’s restaurant at the location where Heather sustained her injury. On March 9, 1978 plaintiff amended his petition and joined as party-defendant Bates # 1, Inc. alleging it to be the owner of the McDonald’s franchise and operator of the business at the location where Heather sustained her injury. On May 8, 1978 a judgment was rendered granting the motion for summary judgmeht'filed by McDonald’s System, Inc. dismissing plaintiffs claim against it. Defendant Bates # 1, Inc. filed an exception of prescription contending that plaintiff’s suit against it filed more than one year after the date the accident occurred had prescribed.

On September 27, 1978 plaintiff again amended his petition and joined The Home Insurance Company alleging it to be the insurer of McDonald’s System, Inc. The Home Insurance Company was the insurer of both McDonald’s System, Inc. and Bates # 1, Inc. The Home Insurance Company filed an exception of prescription contending it was joined as a party-defendant more than one year after the accident occurred. The trial court denied the exceptions of prescription which were filed by the Home Insurance Company and Bates # 1, Inc. The case was then tried on its merits and the plaintiff’s claim was rejected on a finding of no negligence on the part of Bates # 1, Inc. Plaintiff appeals the judgment. Defendants neither appeal nor answer the appeal.

In brief on appeal defendants re-urge their exception of prescription. Plaintiff contends that defendants, who neither appealed nor answered his appeal, may not re-urge the exception of prescription which had been rejected by the trial court.

LSA-C.C.P. art. 2133 provides:

“An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. . . . ”

Defendants seek no change in the judgment because the effect of sustaining on appeal their pleas of prescription would leave the demands of plaintiff rejected just as they are now rejected in the judgment appealed from. The exceptions of prescription filed by appellees may be considered by this court even though the defendants neither appealed nor answered the appeal. Succession of Markham, 180 La. 211, 156 So. 225 (1934); State v. Placid Oil Company, 274 So.2d 402 (La.App. 1st Cir. 1972); Stevenson v. Roy, 194 So.2d 424 (La.App. 4th Cir. 1967).

The trial court relied on Brooks v. Wiltz, 144 So.2d 413 (La.App. 4th Cir. 1962) and Allstate Ins. Co. v. Manemin, 280 So.2d 857 (La.App. 3d Cir. 1973) in refusing to sustain the exceptions of prescription. In Brooks v. Wiltz plaintiff sued Elsworth G. Wiltz when the tortfeasor’s proper name was Ellis G. Wiltz. Elsworth was the first name of the tortfeasor’s twin brother. In the Allstate v. Manemin case plaintiff sued C. D. McMane-min while the tortfeasor’s proper name was Doyle C. -McManemin. The party actually named in the petition was Clifford Doyle McManemin, father of the tortfeasor. The court in both of these cases found that due to their peculiar circumstances that petitions filed more than one year after the date of the tort correctly naming the defendant were not subject to an exception of prescription.

In the decision of Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974), plaintiff timely filed suit against a non-existent corporation designated as Comet-Mercury-Ford Company of Lorain, Michigan, when the proper defendant should have been the Ford Motor Company. More than one year after the accident Ford Motor Company was joined as a party-defendant. Ford Motor Company filed an exception of prescription. The court in discussing whether prescription could be interrupted against defendants not named in the petition made the following statement:

“Filing of a petition, therefore, interrupts prescription only as to defendants named in the petition relied upon, in the absence of solidary liability between an unnamed defendant and a defendant who is properly named in the timely filed petition, [citations omitted].
And it is now understood in the law that an amending petition to correct a misnomer does not relate back to the filing of the original petition.” [emphasis ours]. Id. at 273.

The court sustained the exception of prescription.

There is no indication whatsoever in the record that McDonald’s System, Inc. was solidarily liable with Bates # 1, Inc. for torts committed by Bates # 1, Inc. in its business operation. While Bates # 1, Inc. holds a franchise from McDonald’s System, Inc. authorizing it to operate a McDonald’s restaurant, the uncontroverted affidavit in the record in support of the motion for summary judgment establishes the following:

“That McDonald’s System, Inc. does not own or operate the McDonald’s restaurant located at 210 Benton Road, Bossier City, Bossier Parish, Louisiana;
That McDonald’s System, Inc. is not the employer of any persons at the McDonald’s restaurant located at 210 Benton Road, Bossier City, Bossier Parish, Louisiana;
That McDonald’s System, Inc. did not install nor does it own any of the playground equipment located at the aforementioned McDonald’s restaurant nor does McDonald’s System, Inc. have any responsibility for the maintenance or upkeep of said playground equipment nor did McDonald’s System, Inc. have anything to do with the selection or design of the surface on which said playground equipment is located and specifically had nothing to do with the selection, design, ownership, maintenance, or installation of the mat or mats referred to in the plaintiff’s petition in this matter.” Id. Tr. 35.

Though there is the relationship of franchisor/franchisee between McDonald’s System, Inc. and Bates # 1, Inc. and because of this relationship there is a possibility that McDonald’s made Bates aware that it had been sued, neither the business relationship nor knowledge by Bates of the suit results in prescription against Bates being interrupted by the suit being filed against McDonald’s.

The supreme court in Majesty v. Comet, supra, cited with approval Martin v. Mud Supply Company, 239 La. 616, 119 So.2d 484 (1960), and discussed the Martin case in the opinion as follows:

“Recognizing the principles embodied in Article 3550, this Court in Martin v. Mud Supply Co., supra, in a case where no solidary obligation existed between the insured and its insurer, and where the insurer was not named as a. defendant in the original petition against the insured, held that filing of the petition did not interrupt prescription as to the insurer. This result was reached notwithstanding the insurer’s actual knowledge of the suit and the fact that the petition was amended after the prescriptive period to name the insurer as a defendant. The case is most persuasive here.” Id. at 273-274.

In Martin, supra, we find the following statement:

“Our research has not revealed any jurisprudence which holds that knowledge alone of the filing of a suit against a closely associated person or company constitutes an interruption of prescription as to one not cited within a prescriptive period.” Id., 119 So.2d at 492.

The court in Martin, supra, recognized that in certain very unusual factual situations prescription could be interrupted by service upon a wrong defendant. Examples of cases involving such circumstances are reflected by the following discussion quoted from the body of the Martin opinion:

“In Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225, plaintiff cited an incorrect insurer. This Court held that because of the peculiar facts of the case, such citation was sufficient to interrupt prescription. The following syllabus correctly states the ruling of the case:
‘Where three insurance companies were doing business as a group under the title “The Employers’ Group of Boston, Mass.”, letterheads of which bore the names of all three companies, having the same office for their claim department, the same telephone, same manager and same employees in that department, the filing of suit against one of the companies under mistaken belief it was insurer under policy covering automobile causing injury, after plaintiff’s attorney had been led to believe by letter from manager of claim department that the company sued was the company which had issued the policy, was sufficient to interrupt the one-year period of prescription against the company which had issued the policy. Act No. 39 of 1932.’
Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209, also involved a question of incorrect citation. The proper defendant, who was cited after the prescriptive period, operated from the same office, had the same management, and in some instances had the same employees as the improper defendant who had been cited within the prescriptive period. This Court held that citation, though insufficient to support a judgment, interrupts prescription if it notifies defendant of the grounds of plaintiff’s claim and that plaintiff is asserting such claim.” Id., 119 So.2d at 493.

There are no peculiar circumstances here presented similar to those found in the Jackson or Lunkin, supra, cases referred to by the court in Martin, supra, nor circumstances similar to those contained in Wiltz and Manemin, supra. We find the pleas of prescription here filed must be sustained based upon the supreme court decisions of Martin v. Mud and Majesty v. Comet, supra. Because we have concluded to sustain the pleas of prescription filed by defendants we find no need to review the merits.

AFFIRMED at appellant’s cost.

HALL, J., concurs with assigned reasons.

HALL, Judge,

concurring.

I concur in the result reached by the majority opinion, affirmance of the district court’s .judgment rejecting plaintiff’s demands, because the district court’s judgment on the merits is eminently correct. Plaintiff failed to prove the existence of a condition which was unreasonably hazardous to small children. This concurring opinion is written to express my disagreement with the majority conclusion that plaintiff’s claim has prescribed.

It is difficult to take issue with the well-reasoned majority opinion which applies the strict holdings of Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974) and Martin v. Mud Supply Company, Inc., 239 La. 616, 119 So.2d 484 (1959) to this case, with the result that plaintiff’s suit for damages against the corporation operating a McDonald’s restaurant and its liability insurer is dismissed as prescribed even though plaintiff timely filed his suit, mistakenly naming as defendant the operating corporation’s franchisor, McDonald’s Systems, Inc., which is insured by the same liability insurer.

The strict holding of the two cited Supreme Court cases is that under LSA-R.S. 9:5801 the filing of a petition interrupts prescription only as to defendants named in the petition and unnamed defendants who are solidarily liable with a named defendant.

It is my view that the Majesty and Martin cases do not overrule earlier Supreme Court eases, and several Court of Appeal cases, which recognize that under peculiar and exceptional circumstances the filing of suit against an erroneously named defendant whose close relationship with the correct defendant is such that notice to the erroneous defendant necessarily implies notice to the correct defendant, interrupts prescription as to the correct defendant. I believe the Majesty and Martin cases leave r.oom for this more reasonable and equitable interpretation of the applicable statute, and that if they do not, then those cases should be reexamined. I further believe the instant case presents the kind of peculiar and exceptional circumstances to which the exception to the strict rule should be applied.

Within the one-year prescriptive period, plaintiff sued McDonald’s Systems, Inc. under allegations showing clearly that the defendant was being sued as the owner or operator of the restaurant, for injuries caused by an alleged hazardous condition of the premises. McDonald’s Systems, Inc. answered denying liability and pleading contributory negligence of the parents of the injured child. Later, McDonald’s filed a motion for summary judgment on the grounds that it was not the owner or operator of the restaurant and playground and had no responsibility for its design or maintenance. The summary judgment was granted. Plaintiff then filed supplemental or amending petitions naming Bates # 1, Inc. and Home Insurance Company as defendants, more than a year having then expired since the date of the accident. Exceptions of prescription filed by these defendants were overruled by the district court, but are now sustained by the majority opinion of this court.

The record reflects that the restaurant where the accident happened is known as “McDonald’s.” The restaurant is operated by Bates # 1, Inc. under a written franchise or license agreement with McDonald’s Systems, Inc. McDonald’s Systems, Inc. communicates to Bates # 1, Inc. its know-how, new developments, techniques, and improvements in the areas of management, food preparation, and service. Both corporations are insured by Home Insurance Company. The same attorney represented all three defendants, McDonald’s Systems, Inc., Bates # 1, Inc., and Home Insurance Company, in this suit. Knowledge of the proceedings and/or suit was given to the supervisor of the restaurant, an employee of Bates # 1, Inc., by the attorney.

There are significant factual distinctions between Majesty and Martin and the instant case. In Martin the suit was originally filed against the insured only. After the prescriptive period had run, plaintiff sought to add the original defendant’s insurer, who was not solidarily liable with the original defendant, as a party defendant. The court held that prescription had run as against the insurer. That case did not involve a mistake as to the identity of the correct defendant, as in the instant case, and there was no attempt by the plaintiff to name the insurer as a defendant in the timely filed original petition.

In Majesty, the defendant named in the timely filed original petition was fictitious and nonexistent, obviously with no relationship to the correct defendant later named. In the instant case, the defendant named originally is an actual corporation, authorized to do business in Louisiana, with a close relationship with the restaurant where the accident happened and with the correct defendant corporation.

In both Martin and Majesty, the court emphasized that the plaintiffs did not avail themselves of public records (LSA-R.S. 22:1522 as to the names and identities of liability insurers in Martin and the Secretary of State’s records of foreign corporations in Majesty) to identify the proper defendants. No such ease of identification existed in the instant case, involving a franchisor-franchisee relationship between a foreign and a domestic corporation, with the name held out to the public being that of the franchisor.

The circumstances of the instant case are more like those of the cases where the filing of suit against a named defendant has been held to’ interrupt prescription against a closely related unnamed defendant.

In Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225 (1942), the filing of suit against an insurance company which was one of a closely related group of companies, was held to interrupt prescription as to another company which actually issued the policy sued on.

In Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209 (1945), a workmen’s compensation suit was filed against Evan-Hall Company, which operated a sugar factory. Plaintiff was actually employed by Triangle Farms, Inc., a related corporation which owned a plantation adjoining the sugar factory known as Evan-Hall Plantation. The court held that the suit against the named defendant interrupted prescription against the unnamed correct defendant.

In Davis v. Lewis & Lewis, 226 La. 1059, 78 So.2d 173 (1954), the court held prescription running against a liability insurance company was interrupted by the filing of a suit against its insurance adjuster and agent.

A number of Court of Appeal cases have reached similar results under similar circumstances. In Andrepont v. Ochsner, 84 So.2d 63 (La.App. Orl. Cir. 1955), a hospital malpractice suit filed against Dr. Alton Ochsner individually was held to have interrupted prescription running against the Alton Ochsner Medical Foundation, the correct owner of the hospital, and its liability insurer.

In Stewart v. Maloney Trucking & Storage, Inc., 147 So.2d 62 (La.App. 4th Cir. 1962), plaintiff filed a workmen’s compensation suit, mistakenly naming Maloney Trucking & Storage, Inc. as defendant, his employer being Maloney Carloading, Inc., a separate corporation. The filing of the suit against the closely related corporation was held to have interrupted prescription against the employer corporation.

Although an exception of prescription was sustained in Kinchen v. Fontenot Const. Co., 359 So.2d 661 (La.App. 1st Cir. 1978), on a finding that there was no connection whatsoever between the named defendant corporation and the correct unnamed corporation, the court recognized the rule as being:

“As to one not made party, prescription may be interrupted by service of process upon one with whom such unserved party is solidarily liable or who is closely associated with a named defendant or has such connexity with a named defendant that it may be presumed that the unserved party has notice of the action. Commercial Union Insurance Company v. Bringol, 262 So.2d 532 (La.App. 4th Cir. 1972).”

In Brooks v. Wiltz, 144 So.2d 413 (La.App. 4th Cir. 1962), a damage suit against Elsworth G. Wiltz, the twin brother of the actual tort-feasor who was named Ellis G. Wiltz, was held to have interrupted prescription against the actual tort-feasor who was not named as a defendant in the original timely-filed petition.

Allstate Insurance Company v. Manemin, 280 So.2d 857 (La.App. 3d Cir. 1973), was a tort suit in which the named defendant was C. D. McManemin. The court held the filing of the suit interrupted prescription as against Doyle C. McManemin, the son of the named defendant and the actual tort-feasor.

In the recent case of Peyton v. Torg Films Co., 370 So.2d 613 (La.App. 4th Cir. 1979), a suit filed against “The Torg Film Company” under the long-arm statute, was held to have interrupted prescription against the correct defendant, “Torg Film Services, Inc.”, a foreign corporation not qualified to do business in Louisiana. The court noted that plaintiff had no ready reference to determine the correct identity of the defendant, distinguishing Majesty, supra; Bowerman v. Pacific Mut. Ins. Co., 212 La. 999, 34 So.2d 53 (1948); and Roby v. Owens-Illinois, Inc., 357 So.2d 99 (La.App. 4th Cir. 1978).

The even more recent case of Gradney v. Southern Farm Bur. Cas. Ins. Co., 375 So.2d 212 (La.App. 3d Cir. 1979) involved facts similar to those involved in Jackson v. American Employers’ Ins. Co., supra, and reached the same result as Jackson. Plaintiff sued Southern Farm Bureau Casualty Insurance Company and, after the one-year prescriptive period, amended to substitute a related company, Louisiana Farm Bureau Mutual Insurance Company, as the party defendant. The court held that the filing of the suit against Southern Farm Bureau interrupted prescription against Louisiana Farm Bureau.

The rationale of these cases is consistent with the rationale of several cases which hold that prescription is interrupted as to an unnamed plaintiff by a suit brought by an erroneously named plaintiff or a plaintiff who is closely connected in relationship and identity of interest with a subsequent plaintiff. See Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973), where a suit brought by an erroneously named deceased person was held to have interrupted prescription as to the claim of the correct plaintiff. See also Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), where a suit brought by a workmen’s compensation insurer, who was subsequently held to have no cause of action against the defendant tort-feasor, was held to have interrupted prescription as to the belatedly filed claim of the injured employee against the tort-feasor.

The rule established by the cited cases is that under exceptional and peculiar circumstances, a suit mistakenly filed against the wrong defendant will interrupt prescription running against the correct defendant where the named and unnamed defendants are closely related and where the filing of the suit against the wrong defendant necessarily imparts knowledge of the judicial assertion of the cause of action to the correct defendant. This rule does no violence to and is entirely consistent with the principles and purposes of prescription liberandi causa. The plaintiff’s claim is timely asserted, negating any presumption of waiver of his claim or sleeping on his rights. The defendant is given notice of the legal proceedings based on the claim involved and is not placed in the position of defending a stale claim where evidence might be difficult to produce.

The threads that run through the cases which have found an interruption of prescription as to an unnamed defendant are (1) justifiable mistake as to the name and/or identity of the defendant; (2) allegations that state a cause of action against the unnamed defendant; and (3) a close connection between the named and unnamed defendants such as to infer notice of the filing of suit to the unnamed defendant. These threads are all present in the instant case.

There was obviously a mistake as to which entity actually operated the McDonald’s restaurant. The mistake was understandable because of the name of the restaurant and because the named defendant actually had a connection with the restaurant. The petition as originally filed alleged a cause of action against the operator of the restaurant. Because of the close connection between the named franchisor and the unnamed franchisee-operator, both insured by the same liability insurer, the suit filed against the franchisor amounted to notice to the franchisee of the filing of suit. The record shows that notice was, in fact, communicated to the correct defendant. The trial court correctly overruled the exceptions of prescription.

For these reasons, I respectfully concur.

      . LSA-C.C. art. 3550 — “Good faith not being required on the part of the person pleading this prescription, the creditor can not compel him or his heirs to swear whether the debt has or has not been paid, but can only blame himself for not having taken his measures within the time directed by law; and it may be that the debtor may not be able to take any positive oath on the subject.”

      . See also Roby v. Owens-Illinois, Inc., 357 So.2d 99 (La.App. 4th Cir. 1978), where the plaintiff erroneously sued Aetna Life & Casualty Insurance Company mistakenly confusing that company with The Aetna Casulty & Surety Company. More than one year after the date of the accident plaintiff amended his suit to correctly name the defendant, The Aetna Casualty & Surety Company. This defendant, upon being served, filed an exception of prescription which was sustained by the trial court relying upon Majesty v. Comet, supra, and the trial court’s judgment sustaining the plea of prescription was' affirmed on appeal.


author: DOMENGEAUX, Judge. CULPEPPER, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellant, v. Johnnie R. HILL, Defendant-Appellee.
    No. 7433.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Leonard Knapp and Wayne Prey, Lake Charles, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellant.
    Frank T. Salter, Jr. and Stephen' R. Streete, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX, and FORET, JJ.
   DOMENGEAUX, Judge.

The State of Louisiana filed a rule to show cause in order to have the defendant-appellee, Johnnie R. Hill, declared an habitual offender under the provisions of La.R.S. 32:1471 et seq. The trial court granted the defendant’s motion for a directed verdict and the state brings this appeal. We affirm.

The facts reveal that on February 26, 1979, the State of Louisiana, through the District Attorney’s office for the Fourteenth Judicial District, Parish of Calcasieu, filed a petition to have Johnnie R. Hill declared an habitual offender as defined by La.R.S. 32:1472.

At the hearing, the State declared that it was ready to proceed with the trial. Counsel for defendant waived the presence of the defendant at the hearing. When the State sought to call the defendant to testify they became aware that the defendant was not present in court. The State moved for a continuance on the basis that the testimony of the defendant was crucial to their case. Defense counsel timely objected to the continuance and the motion was withdrawn by the State.

The State then asked for the issuance of an instanter subpoena for the defendant. A Deputy Sheriff attempted to serve the subpoena on the defendant at the defendant’s home but was informed that the defendant was not home.

The State then attempted to dismiss its petition, but was advised by the court that the dismissal would .be with prejudice.

The State then offered, into evidence, a certified copy of what purported to be the defendant’s driving record, and rested its case.

The defendant then moved for a directed verdict. The trial court held that the State failed to satisfy its burden of proof. In granting the defendant’s motion the trial judge stated:

“At this time, the Court will grant the defendant’s motion for directed verdict. I don’t think there has been a showing . not a scintilla of evidence in the record that the defendant named in this rule and the defendant at the bar is one and the same person as the person shown on the certified copy of the abstract of the driving record that has been received in evidence. This is a civil proceeding which requires proof merely by a preponderance of the evidence; but, I find no evidence whatsoever that the person who is the defendant in this proceeding is the same person who is named and shown in the certified copy of the abstract of the driving record.”

The State argues on appeal that the trial court erred in its finding of a lack of proof of identity sufficient to adjudicate the defendant an habitual offender. Relying on State v. Wilson, 354 So.2d 1077 (La.App. 2nd Cir. 1978), the State urges that in the absence of a showing by the defendant charged with being an habitual offender, under the motor vehicle law, that he is not the same person named in the abstract of a conviction record, the court is empowered to find the person of the same name as in the abstract to be the habitual offender.,

While the State’s interpretation of State v. Wilson, supra, may be proper in some circumstances, the facts of our present case are clearly distinguishable. In that case, our Supreme Court found that due process was met when the trial court adjudicated as an habitual offender, a person of the same address as the last address of the person shown in the abstract of convictions.

In our case, the address where the defendant, Johnnie R. Hill, was served did not match the addresses shown on the abstract of convictions. One Johnnie R. Hill was apparently convicted of operating a vehicle while his driver’s license was under suspension on January 18, 1976. This Johnnie R. Hill resided at 1406 Acadian Drive, Apartment 10, in Houma, Louisiana. The next ticket in chronological order was issued on February 10, 1976, to one Johnnie R. Hill who resided at Route 1, Box 1013A, Lake Charles, Louisiana, for driving while his driving privileges were suspended. These two tickets were issued less than one month apart, yet the addresses of the person receiving the ticket are different. The third ticket was issued on November 9, 1978, to Johnnie R. Hill who resided at Route 1, Box 1013A, Lake Charles, Louisiana, for driving while intoxicated. The instanter subpoena was issued to Johnnie R. Hill who resided at 409 Mackey Street, Lake Charles, Louisiana. This was the third address presented to the court for a person named Johnnie R. Hill.

Proceedings under the habitual offender statutes are civil rather than criminal. State v. Williams, 332 So.2d 432 (La.1976). In all civil matters, the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence. Meyer v. State of Louisiana, 312 So.2d 289 (La.1975); Thibodeaux v. St. Joseph Hospital, 276 So.2d 703 (La.App. 1st Cir. 1973).

By the use of a subpoena, the appellant could have insured that the defendant was the same person as the one shown in the abstract. The State failed to do so and accordingly was unable to bear its burden of proof. We agree with the trial judge that the evidence was insufficient to prove that the defendant in the trial proceedings is the same person named and shown in the certified copy of the abstract of the driving record.

The State sought a new trial which was denied by the district court. In that regard, the trial judge stated:

.In effect, the State is asking for a second opportunity to prove its case. The Court does not believe that the State has shown the existence of either of the peremptory grounds under Article 1972 of the Louisiana Code of Civil Procedure for the granting of a new trial nor has the State shown a good ground for granting a new trial in the discretion of the Court under Article 1973 of the Louisiana Code of Civil Procedure. Accordingly, the motion for a new trial will be denied.

We find no error in the denial of a new trial.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal, not excluded by law, are taxed to the plaintiff-appellant.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

I dissent from the majority opinion for several reasons. First, I agree with State v. Wilson, 354 So.2d 1077 (2d Cir. 1978), construing the Motor Vehicle Habitual Offender Law, R.S. 32:1471-1481. The Court of Appeal, Second Circuit held:

“The law was enacted to provide an expedient procedure at minimum expense and trouble whereby the State would deter habitual offenders from using its highways. Section 1471. Where the defendant who is served with the petition contends that, although of the same name as the person contained in the abstract, he is not the same person who was convicted of any offense shown in the abstract, section 1476 provides alternative methods for the court to determine the issue.1 These methods certainly should not be held exclusive and we hold this section applies to the situation where the defendant contends he is not the same person named in the abstract. In the absence of such a showing or contention by the defendant, the court is empowered to find a person of the same name as in the abstract, who is served as the law requires, to be an habitual offender as was done here. Due process, however minimal, was met. We note that the last address of the person shown in the abstract (Warren Drive, West Monroe) was the same address at which defendant was served by domiciliary service.” (Footnote omitted)

The majority distinguishes State v. Wilson on the basis that there the last address of the person shown in the abstract was the same address at which defendant was served in the habitual offender proceedings, whereas in the present case the addresses shown in the abstract are different from that at which the defendant Hill was served. I think it is apparent from a reading of the above quoted portion of the opinion in State v. Wilson, that the notation that the addresses were the same is not an essential part of the decision. The holding of the court is that where the defendant is properly served and appears on the day of the hearing and an abstract of the prior convictions, as provided by R.S. 32:1473, is filed by the State, the burden is on the defendant to contend and prove that he is not the same person named in the abstract. This appears to be the clear meaning of the provision of R.S. 32:1473 which states: “Such abstract shall be competent evidence that the person named therein was duly convicted by the court wherein such conviction or holding was made by each offense shown by such abstract.”

I am aware of jurisprudence holding that under the Habitual Offender Law (for felony convictions), R.S. 15:529.1, et seq., the State has the burden of proving the identity of the .accused when he denies the allegations of the information or refuses to answer or remains silent. State v. Curtis, 338 So.2d 662 (La.1976). However, that jurisprudence construes a statute which applies to criminal proceedings and contains different provisions from those of the statute involved here. I find no case from our Supreme Court or our Courts of Appeal in conflict with the holding by the Court of Appeal, Second Circuit in State v. Wilson, supra.

Furthermore, even assuming that the abstract did not establish a prima facie case that the defendant was the same person as the one previously convicted, the circumstances of this case show that the defendant waived additional proof of identity. As the majority opinion states, at the beginning of the hearing, counsel for defendant waived the presence of his client. When the State sought to call the defendant under cross-examination, the district attorney became aware for the first time that defendant was not in the courtroom. The State moved for a continuance, which was denied. Then the State asked for an instanter subpoena for the defendant, which was granted. The deputy sheriff who attempted to serve the subpoena testified, at the hearing on application for a rehearing, that when he tried to serve defendant at his home, defendant’s wife told the deputy that defendant’s attorney had advised defendant to leáve the courtroom before the hearing and to go to another building. It is obvious that these circumstances show a deliberate scheme to thwart the proceedings. The court should not allow such a scheme to accomplish a miscarriage of justice in a civil proceedings.

In the ease of State v. Skyeagle, 345 So.2d 189 (3rd Cir. 1977), writs refused by our Supreme Court, the defendant appealed contending the State had not sufficiently identified him as being the same person as in the prior conviction. We noted the record showed that during the proceedings a stipulation was entered for defendant’s benefit that in the two prior convictions he was not represented by counsel. Under the circumstances, we held the stipulation amounted to an admission that the defendant was the same person as named in the prior convictions. The same rationale is applicable here.

Finally, I think the trial judge erred in not granting to the State either a continuance or a new trial. Under the circumstances set out above, which show a deliberate scheme to deceive the district attorney and the court, I think the trial judge abused his discretion in allowing such a deception to succeed.

For the reasons assigned, I respectfully dissent.


author: CULPEPPER, Judge.

text:
    Marvin T. HAYES, Plaintiff and Appellant, v. Evelyn HAYES, Defendant and Appellee.
    No. 7438.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.

      Raymond D. Fuljenz, Lake Charles, for plaintiff and appellant.
    Nathan A. Cormie, Lake Charles, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   CULPEPPER, Judge.

This is an action to annul a donation inter vivos of an undivided interest in immovable property. The plaintiff, Marvin T. Hayes, is a grandchild and one of the heirs of the deceased donor, Marguerite Gibbs Hayes. The defendant is the donee, Evelyn Hayes, daughter of the donor and one of the plaintiff’s co-heirs. Plaintiff seeks to annul the donation on the grounds of a defect in form and for fraud. The trial court held plaintiff failed in his burden of proof. Plaintiff appeals. We affirm.

Plaintiff’s specification of errors urges the trial court erred in: (1) failing to find the donation contrary to the prohibition of LSA-C.C. 1497 against donations omnium bonorum, (2) failing to find fraud and collusion between the donee and the notary public who notarized the Act of Donation, (3) overruling plaintiff’s objection to the failure to place a witness under the rule of sequestration, (4) limiting the testimony of an expert witness, (5) failing to find the donation defective in form under LSA-C.C. Article 1536, and (6) concluding there was no evidence to show the value of the im-movables donated.

The facts are as follows. Marguerite Hayes was in her early nineties when the donation in question was executed on March 29,1971. Plaintiff contends that she was blind at that time. According to plaintiff, he visited his grandmother for a day or so in the summers of 1970 and 1971, and again for a weekend in November, 1972. On all of these occasions, plaintiff says he observed that she was not able to recognize either him or his children until they were within a foot of the bed.

Other members of the Hayes family testified that Marguerite was not blind. Her daughters, Evelyn Hayes and Louise Sanford, and a granddaughter, Barbara Ann Sanford, all stated that Marguerite read newspapers, magazines and her Bible until shortly before her death on November 22, 1972. Three family friends, Mrs. Joe Russo, Reverend Ernest Walker, and Mrs. Tom Taylor, and a visiting nurse, Patsy Delane, all testified that they had seen Marguerite read her Bible during 1971 and later. None of them ever heard Marguerite complain of a vision problem.

Plaintiff called two physicians to testify. Dr. John McClure, a general practitioner, had treated Marguerite from 1957 until her death. Dr. McClure stated that he knew Marguerite had “cataracts” because he had looked into her eyes and seen “them”. He had never performed a special vision examination, however, because she had never complained of a vision problem and always recognized him. He stated he did not believe that Marguerite was blind at her death.

Dr. Clinton E. Hart, an eye specialist, testified he saw Marguerite in 1963 and 1966. He diagnosed a mature cataract, in the left eye only, in. 1963 and found no change in this condition in 1966. He never saw Marguerite again.

The Act of Donation was executed in the house where Marguerite lived with her daughter, Evelyn. Harry Lee Fontenot acted as notary and his wife and son witnessed the act. As Mrs. Fontenot described the scene, Mrs. Hayes sat in a chair while Mr. Fontenot read the document out loud. Then, Marguerite walked over to a table, put her glasses on and looked over the document, appearing to study it before signing her name. Both Mr. and Mrs. Fon-tenot were of the opinion that Marguerite could read the document.

Harry Lee Fontenot had known Marguerite for years and had notarized other instruments, including a power of attorney from Marguerite to Evelyn Hayes on July 10, 1970. Fontenot owned IV2 acres of the 29 acres of land covered by the March 29, 1971 donation. He also had permission from Marguerite to graze cattle on the entire tract.

Evelyn Hayes is single, had always lived with her mother, and had supported her since her father’s death in 1948. Evelyn testified that approximately 50% of her income went toward her mother’s support. She provided maintenance on the house, mortgage payments, food, furniture, and appliances. Evelyn also employed girls to stay with her mother while Evelyn worked. Evelyn’s personal checks totaling $5,663.09 were introduced into evidence.

Evelyn testified that Marguerite had an annual income not exceeding $1,500 from an unidentified lease source, until two years before her death. This income combined with an old age assistance pension was approximately $105.00 per month.

There was no evidence offered to show the value of the property donated.

Plaintiff contends the donation was contrary to the prohibition contained in LSA-C.C. Article 1497:

“Art. 1497: The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for. subsistence; if he does not do it, the donation is null for the whole.”

The record contains no evidence that the property donated represented the totality of Marguerite’s assets. To the contrary, there was evidence that Marguerite did have a source of monthly income. Plaintiff failed to prove the donor was divested of all of her property.

Plaintiff failed to present evidence as to the value of the property donated. Therefore, his contentions concerning whether or not the donation was onerous or remunerative under C.C. Articles 1523-1526 must be rejected. The value of the donation must he known in order to apply these articles.

Plaintiff’s allegations of fraud and collusion between the defendant-donee and Harry Lee Fontenot are not supported by the record.

Plaintiff also makes the argument that the trial court erred in failing to place a witness under the rule of sequestration. An examination of the record shows that Reverend Ernest Walker entered the courtroom immediately prior to a recess and testified directly after the recess. While plaintiff does have an absolute right to have all witnesses sequestered, no prejudice resulted here and the assignment of error is without merit.

Plaintiff’s primary argument for nullification of the donation is the contention the donation was defective in form. Plaintiff argues three witnesses were required in this case because Marguerite was blind. As authority for this contention, plaintiff cites LSA-C.C. Article 1536 and the case of Mossler Acceptance Company v. Osborne, 14 So.2d 492 (1st Cir. 1943) where the court applied LSA-C.C. Article 2234.

We pretermit any discussion of the requirement.of three witnesses under Article 2234 because the trial court found as a fact that Marguerite Hayes was not blind. It is well settled that a factual determination made by the trier of fact should not be disturbed when there is evidence to support the finding and it is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

Under the factual finding by the trial court that the donor could read, the donation by an act before a notary and two witnesses was valid as to form under LSA-C.C. Article 1536.

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Eddie Ray HALL, Plaintiff-Appellant, v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    No. 7452.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for plaintiff-appellant.

      Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   DOMENGEAUX, Judge.

This is a suit on a hospitalization insurance contract. Plaintiff instituted this action against defendant, National Life and Accident Insurance Company, to recover expenses incurred when plaintiff was hospitalized. Following a trial, judgment was rendered rejecting plaintiff’s demands. The plaintiff perfected this appeal from the trial court’s ruling.

The facts show that on December 6, 1976, a policy of hospitalization insurance was issued by defendant to plaintiff. The insurance policy insured plaintiff against losses due to hospital confinement.

On July 17, 1977, plaintiff was hospitalized for thirteen days in St. Frances Cabrini Hospital for treatment of an acute low back sprain and an upper gastrointestinal disturbance. Following his release, he submitted a claim to defendant for coverage of the hospital expenses. Defendant rejected plaintiff’s claim, contending that the policy excluded coverage. Thereafter, plaintiff instituted this suit.

The insurance policy provides coverage for hospital confinement. The policy defines hospital confinement in the following manner.

“As used herein, Hospital Confinement is defined as continuous confinement of the Insured for twenty-four hours or more, commencing while this policy is in force, in a hospital, other than a hospital operated by the Veterans Administration or other agency of the Federal Government, upon the advice and recommendation of a licensed practicing physician, as the result of:
(a)an accidental injury sustained while this policy is in force,
(b) sickness or disease contracted after this policy has been in force for 28 days from its Date of Issue, or
(c) pregnancy, childbirth or miscarriage for which such confinement commences after this policy has been in force nine months or more from the later of the Date of Issue or the date of last reinstatement.” (Emphasis added)

The trial judge found that plaintiff’s hospitalization was for treatment for sicknesses which existed prior to the issuance of the insurance contract, and therefore, not covered by the contract. Factual findings, made by the trial judge, when supported by reasonable inferences of credibility, are not to be disturbed unless the record reveals the finding to be clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In this case, the record amply supports the trial judge’s findings that plaintiff’s back problems and stomach disorder were not contracted 28 days after the issuance of the policy. Plaintiff admitted at the trial that shortly before applying for the hospitalization policy, he had been hospitalized in order to receive treatment for an ulcer and a lower back disorder. Doctor Gutierrez, plaintiff’s treating physician, stated in a report filed into evidence that plaintiff’s hospitalization in July, 1977 was the result of a recurrence of a peptic ulcer which had been diagnosed initially in 1971, and a recurrence of a back disorder which plaintiff had suffered since 1970.

Since the sicknesses for which plaintiff was hospitalized in July 1977 existed prior to the issuance of the policy, the policy did not provide coverage for the expenses incurred by plaintiff in the July, 1977 hospitalization.

However, plaintiff contends that because defendant’s agent had been informed, at the time the application for hospitalization insurance was taken, that plaintiff had recently been hospitalized for an ulcer and a back disorder, the policy should provide coverage for the hospitalization even though the sicknesses were not contracted after the policy had been in effect 28 days. In support of this contention, plaintiff cites Tiner v. Aetna Life Insurance Co., 291 So.2d 774 (La.1974).

However, plaintiff’s reliance on Tiner is misplaced. In Tiner, plaintiff brought suit against his hospital expense insurer to recover medical expenses sustained in the treatment for a liver infection. The defendant insurer resisted liability on the grounds that the policy was void because of a material misrepresentation made by the insured in filling out the application for the insurance; the alleged misrepresentation had do to with whether the insured “ever had any mental, nervous, physical, or functional disorder or impairment.” The facts showed that the insured made no false statements but that the insurer’s agent had mistakenly filled out the application form. The court, imputing the knowledge of the agent to the defendant insurer, held that the defendant was estopped from denying coverage on the basis of material misrepresentation. Additionally, we find nothing in Tiner which indicates that the policy therein contained any clause excluding coverage for sickness or disease predating the issuance of the policy; nor does Tiner indicate when the insured therein contracted the liver infection for which she was hospitalized.

In the present case, the insurer on appeal does not attempt to avoid liability on the ground that the policy is void because of a material misrepresentation, but resists liability on the ground that the policy does not provide coverage for plaintiff’s hospitalization because the hospitalization was for treatment of sicknesses which existed prior to the issuance of the policy.

Even accepting as true plaintiff’s testimony that he informed defendant’s agent that he suffered from an ulcer and a back disorder, the agent’s knowledge that plaintiff suffered from these conditions cannot have the effect of expanding the insurance policy to provide coverage for hospitalization as the result of sicknesses which pre-existed the issuance of the contract. As stated in Smith v. Republic National Life Insurance Company, 335 So.2d 739 (La.App. 2nd Cir. 1976):

“The general rule in most jurisdictions is that equitable estoppel cannot be used to enlarge or extend coverage beyond that set forth in the policy. See 43 Am.Jur.2d, Insurance, § 1184; 1 A.L.R.3d 1139; Comment, Waiver and Estoppel in Louisiana Insurance Law, 22 La.Law Rev. 202; and Couch on Insurance 2d, § 71:39. Our courts follow this general rule. See Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3d Cir. 1970), writ refused, . . ”

Within the context of this case, we find applicable to the facts herein, the legal principle that a valid insurance policy is a contract between the insured and the insurer and under La.C.C. Art. 1901, as is true of all other contracts, it is the law between them. Sholes v. Continental Casualty Co., 196 So.2d 680 (La.App. 4th Cir. 1967). Further, where the language of the policy is clear and free of ambiguity as it is herein it constitutes the contract between the parties and must be enforced as written. Morgan v. State Farm Mutual Automobile Insurance Co., 195 So.2d 648 (La.App. 3rd Cir. 1967); see also La.C.C. Arts. 1945-1946.

In addition, it is settled that in the absence of conflict with laws or public policy, insurers have the same right as individuals to limit their liability and to impose whatever conditions they please upon their obligations under the policy. Muse v. Metropolitan Life Insurance Co., 193 La. 605, 192 So. 72 (1939); Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App. 3rd Cir. 1972); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972); Sylvest v. Employers Liability Assurance Corp., 252 So.2d 693 (La.App. 1st Cir. 1971); see also La.R.S. 22:620. This is exactly what the defendant herein has done and the unambiguous provisions limiting its liability must be given effect.

In summary, since plaintiff’s confinement was the result, of sicknesses which existed prior to the issuance of the hospitalization policy, the policy did not provide coverage for the hospital expenses incurred.

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

AFFIRMED.

      . There is no suggestion that the agent assured plaintiff of coverage for the sicknesses involved in this case. In fact, plaintiff’s attorney, in brief, admits that the agent did not assure the plaintiff of coverage.