text:
    DON-BARR FARMS v. POINTE COUPEE FARMERS ELEVATOR, INC. and Old River Terminal Co-op.
    No. 83 CA 0933.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Patrick W. Pendley, Freeman & Pendley, Ltd., Plaquemine, for plaintiff-appellee.
    James C. Dewey, New Roads, for defendant-appellant Pointe Coupee Farmers Elevator, Inc.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Pointe Coupee Farmers Elevator, Inc. (Pointe Coupee), appeals the trial court judgment against it and in favor of plaintiff, Don-Barr Farms (Don-Barr), in this contract suit.

This litigation was instituted by Don-Barr to enforce two contracts for the sale of soybeans. The first contract, # 1090, dated February 4, 1981, was for the delivery of 5,000 bushels of # 1 yellow soybeans at $8.25V2 per bushel. The second contract, # 1093, dated February 24, 1981, was for the delivery of 5,000 bushels of # 1 yellow soybeans at $8.35 per bushel. All of the beans were to be delivered by Don-Barr in January, 1982, to the Old River Terminal. Each of the contracts was signed by Donald Ewing for Don-Barr as seller and by Charles McGehee for Pointe Coupee as buyer.

Approximately 6,400 bushels of beans were delivered to Old River by January 6, 1982. On January 8, 1982, Old River filed for bankruptcy. Since Don-Barr was unable to complete delivery to Old River, the remaining beans were delivered to Pointe Coupee on January 20 and 21, 1982. Pointe Coupee accepted the beans and paid the current market or spot price of $6.25 per bushel.

Don-Barr was not paid for the beans delivered to Old River. On January 8, 1982, this suit was filed to enforce the two contracts. Don-Barr also intervened in the bankruptcy proceeding by filing a vendor’s lien on the beans delivered to Old River. Ultimately, Don-Barr received 85% of the amount owed in cash and 15% in a promissory note for the beans delivered to Old River. The check for the 85% was made payable to Don-Barr and Pointe Coupee.

At trial, Don-Barr sought to recover the difference actually received for the soybeans — 85% cash for 6466.94 bushels, and spot price for 3354.4 bushels — and the contract price.

ACTION OF THE TRIAL COURT

After trial on the merits, the trial court found the two documents to be contracts of sale between Don-Barr and Pointe Coupee. Therefore, Pointe Coupee was obligated to pay the full contract price for the beans. Judgment was rendered in favor of Don-Barr in the amount of $18,011.37, that being the difference between the contract price and the amount Don-Barr actually received. Pointe Coupee appeals that judgment.

ASSIGNMENTS OF ERROR

Pointe Coupee alleges that the trial court erred in:

(1) holding that the transaction between Don-Barr and Pointe Coupee was a sale and not a brokerage agreement; and
(2) computing the amount of money due to Don-Barr, if Pointe Coupee is responsible to Don-Barr.

I.

Pointe Coupee contends that it merely acted as a broker in this transaction and that Don-Barr and Old River were the actual parties to the contract. Pointe Coupee argues that all it did was to telephone Old River to get a price. After allowing for five cents a bushel profit for itself, Pointe Coupee quoted a price to Don-Barr. The contracts were written, based on the price quoted by Old River. The fact that delivery was to be made to Old River is further indication of the intent of the parties, according to Pointe Coupee.

A contract of sale is considered to be perfect between the parties, and the property is of right acquired to the buyer with regard to the seller, as soon as the object and the price are agreed upon although delivery has not been made nor the price paid. C.C. art. 2456. When produce is sold by weight or measure, the sale is not perfect inasmuch as the produce sold is at the risk of the seller until it is weighed or measured; but the buyer may require either delivery of the produce or damages, if there be any, in case of non-execution of the contract. C.C. art. 2458. The seller has two principal obligations, delivery and warranting the thing sold. C.C. art. 2475. Likewise, the buyer has two principal obligations, to pay the sale price and to receive delivery. C.C. art. 2549. If the buyer fails to pay the price, the seller may compel him to do it by offering delivery to him, if delivery has not already been made. C.C. art. 2551.

In this case, the contracts which the parties signed were titled “Contract of Purchase.” Each contract specified that 5000 bushels of #1 yellow soybeans were bought from Don-Barr by Pointe Coupee for a certain price. The soybeans were to be delivered to Old River in January, 1982. Since there was agreement on the object and the price, the sale was made perfect when the beans were delivered. Thus, Don-Barr met all of its obligations as seller, but Pointe Coupee only partially met its obligations as buyer since the contract price was not paid upon delivery.

Pointe Coupee also argues that the action of Don-Barr in intervening in the Old River bankruptcy proceeding is further proof that the contract was between Don-Barr and Old River. The basis of this argument is that Don-Barr could only intervene under the contract and then only if Old River was a party (buyer) to the contract.

Don-Barr’s intervention in the bankruptcy proceeding was accomplished by filing a vendor’s lien. Through this action, Don-Barr's interest in the soybeans deposited with Old River was made known and was thus preserved from the bankruptcy proceedings. Don-Barr’s contention was that the vendee, Pointe Coupee, was still in possession of the soybeans because the contract specified that delivery to Pointe Cou-pee was to be made at the Old River terminal. Since Don-Barr had no agreement with Old River, possession remained in Pointe Coupee. The intervention was also necessary for the preservation of Don-Barr's rights under L.S.A.-C.C. art. 3227, et seq. Therefore, the existence of a contractual relationship between Don-Barr and Old River was not a prerequisite for the filing of the vendor’s lien. Furthermore, we find there was no contract between Don-Barr and Old River.

Pointe Coupee’s agent testified that he called Old River to lock in a price to “cover himself.” This indicates a second contract was made between Pointe Coupee and Old River, not that Don-Barr’s contract was with Old River.

The agent also testified that had Don-Barr failed to deliver the beans under the contract, legal means would have been taken by Pointe Coupee to acquire the beans. Such action is normally taken by a buyer rather than by a broker.

We find no merit in Pointe Cou-pee’s arguments. The contracts were clearly contracts of sale, not brokerage contracts. The contracts were signed by Pointe Coupee’s agent as buyer on their printed forms. If this was to have been a brokerage agreement, it' would have been very simple to show that intent in the documents. This was not done. This court is bound to give legal effect to a written contract according to the true intent of the parties and this intent is to be determined by the words of the contract when they are clear, explicit and lead to no absurd consequences. L.S.A.-C.C. art. 1958. Quintana Petroleum Corporation v. Alpha Investments Corporation, 435 So.2d 1092 (La.App. 1st Cir.1983), rehearing denied, Aug. 23, 1983. Any ambiguities are to be construed against the party drafting the document. See Car Kits, Inc. v. Bolt-On Parts, Inc., 439 So.2d 479 (La.App. 1st Cir.1983). We find no ambiguity. Even if there were any ambiguities, they would have to be construed against the drafter, Pointe Coupee. Thus, the result would be the same.

II.

Pointe Coupee alleges that the trial court erred in computing the amount owed to Don-Barr. Pointe Coupee argues that credit should have been given for handling costs and for the amount of the promissory note representing 15% of the price for beans delivered to Old River.

The amount due under the contracts for 10,000 bushels of soybeans was $83,025.00. At the time of trial, Don-Barr had received a total amount of $65,013.63. This amount included $44,234.98 cash from the bankruptcy proceeding and $20,778.65 from Pointe Coupee as the spot-market price for the beans delivered there. This leaves a difference of $18,011.37.

The evidence introduced at trial shows that Don-Barr delivered 6466.94 bushels of # 1 yellow soybeans to Old River and 3354.4 bushels of # 1 yellow soybeans to Pointe Coupee for a total of 9821.34 bushels. The total price for 5000 bushels at $8.25V2 per bushel under contract # 1090 is $41,275.00. The price for the remaining 4821.34 bushels under contract # 1093 at $8.35 per bushel is $40,258.19. The total amount due for soybeans actually delivered is $81,533.19. This leaves a difference of $1491.81 between the soybeans contracted for and the soybeans actually delivered. This difference, $1491.81, should be credited to Pointe Coupee against the contract price of $83,025.00.

Counsel for Don-Barr admitted to the trial court during closing argument that a credit of $408.00 should be allowed to Pointe Coupee for the soybeans delivered there. This figure represents the extra handling charges Pointe Coupee incurred that were normally passed on to the seller. No other evidence was introduced relative to any other expenses which should be deducted for the soybeans delivered to Pointe Coupee or Old River. Therefore, none may be granted.

Pointe Coupee should be allowed a credit in the amount of $1899.81. To this extent the judgment of the trial court is amended. The question of the promissory note is not before this court. Therefore, no credit will be given for it.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part and amended in part. Judgment is hereby rendered in favor of plaintiff, Don-Barr Farms, and against defendant, Pointe Coupee Farmers Elevator, Inc., in the amount of $16,111.56, together with legal interest from the date of judicial demand. Costs of this appeal are to be shared equally by the parties.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

COVINGTON, J., concurs.


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Lois E. FORT, et vir. v. Louis M. ATKINS.
    No. 83 CA 0961.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Ronald G. Coleman, Baton Rouge, for plaintiffs-appellants Lois Fort and Edward Fort.
    J.D. Deblieux, and Ian F. Hipwell, U.S. Atty., Baton Rouge, for defendant-appellee Louis M. Atkins.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue before us is whether or not the court erred in granting a summary judgment in this tort suit.

We conclude it did and, therefore, reverse.

Plaintiff, Lois E. Fort, was employed by the United States Postal Service and defendant, Louis M. Atkins, was her immediate supervisor. On May 2, 1981 an incident occurred wherein Mr. Atkins allegedly assaulted and injured Ms. Fort at the main branch of the post office in Baton Rouge. She filed suit for the damages sustained in the incident. Mr. Atkins, represented by private counsel, answered the suit by a general denial and the matter proceeded toward trial. The pretrial order indicated the main issue was whether defendant actually grabbed plaintiffs neck and exerted pressure as alleged, or simply “... touched [her neck] in an effort to get her attention.” The matter was set for trial on January 18, 1983. On December 14, 1982 the United States Attorney enrolled as co-counsel, alleging the incident occurred while Mr. Atkins, a federal employee, was within the scope of his employment. On January 10, 1983, a motion for summary judgment was filed wherein defendant urged that because the incident arose from his federal employment, he was immune from suit. The trial court heard the matter and granted the summary judgment.

In reasons for judgment the court expressed some doubt about the equity of a federal employee being immune in a state action involving an intentional tort. Nevertheless, the court recognized the “governmental immunity” as set forth in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Noting that the plaintiff had also filed a complaint with the Equal Employment Opportunity Commission, the court stated it also based its decision to grant the summary judgment on 42 U.S.C. § 2000e-16 (c) and Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The court stated Brown stood for the proposition that a plaintiff who has filed a complaint with the E.E.O.C. must exhaust those administrative remedies before filing a civil suit.

First, we note the trial court misstated the holding of Brown. The holding is more accurately stated as follows: A federal employee is entitled to file a civil suit claiming discrimination, but in doing so must follow the procedure as set forth in the Civil Rights Act, particularly § 717(c). The Act is the exclusive judicial remedy for federal discrimination complaints so that an individual who does not comply with the act (as to time limits for filing suit, for example) will have no right to pursue the discrimination claim in the federal courts.

We note however, the gist of the Brown holding is that the Civil Rights Act provides the exclusive judicial remedy for discrimination claims. The court did not state that the filing of a discrimination claim in any way affects the filing of a tort suit arising from the same incident. The two suits deal with entirely different matters. Therefore, we conclude the E.E.O.C. complaint has no bearing whatsoever on the present tort suit.

The only question then, in determining the propriety of the trial court’s actions, is whether there was any genuine issue of material fact.

A motion for summary judgment shall be rendered “... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.

The crucial issue in this case is whether Mr. Atkins was acting in his official capacity at the time of the incident and could therefore invoke the “official immunity” doctrine. We conclude the affidavits in the record establish there is an issue of fact concerning this matter; therefore, summary judgment was inappropriate.

The petition and answer do not address the issue of whether or not Mr. Atkins was acting in his official capacity at the tirpe of the incident. Attached to the motion for summary judgment were affidavits of Louis Atkins and Quentin T.' Ellis. Mr. Atkins attested that on the date of the incident he was Lois Fort’s immediate supervisor and that his actions on that date arose solely out of his official duties. Mr. Ellis attested he was Mr. Atkins’ supervisor and tour superintendent at the United States Post Office. He stated that Mr. Atkins, as Lois Fort’s supervisor, had the authority to discipline her for misconduct.

Lois Fort stated by affidavit Mr. Atkins physically attacked and injured her and that he was not performing any official duty. Signed statements filed in connection with the E.E.O.C. investigation were also submitted. In one statement, Robert Wilfong, the “SCO Manager/Postmaster” stated he considered Mr. Atkins’ action to be improper.

The motion for summary judgment should be granted only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law. Bartlett v. Calhoun, 430 So.2d 1358 (La.App.3d Cir.1983), writ denied, 438 So.2d 575 (La.1983). It should be used cautiously and sparingly and any reasonable doubt should be resolved against mover and in favor of full trial on merits. Riviere v. Bethard, 422 So.2d 1341 (La.App.3d Cir.1982).

The conflicting affidavits convince us there is an issue of material fact to be determined, i.e., whether or not Mr. Atkins was acting in his official capacity when the incident occurred.

Summary judgment is inappropriate, therefore, we reverse.

REVERSED.

      . The defendants in Barr held executive positions in a federal agency and the tort alleged was that of libel. However, the immunity has also been recognized as applying to nonexecu-tives, such as postal workers, for the intentional tort of assault. See, Blatchford v. Guerra, 548 F.Supp. 406 (S.D.Fla.1982) and Bagwell v. Brannum, 533 F.Supp. 362 (N.D.Ga.1982).

      . § 2000e-16 is found in Title 42 ("The Public Health and Welfare"), Chapter 21 ("Civil Rights”) of the United States Code. It states, in part, that "All personnel actions affecting employees ... in the United States Postal Service ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” Subsection (c), cited by the trial court, grants a complaining employee the right to file a civil action against the head of the appropriate agency within a certain time period following action by the appropriate agency or the Equal Employment Opportunity Commission.


author: EDWARDS, Judge.

text:
    STATE of Louisiana In the Interest of the Minor Child Woodrow Joseph WISHAM.
    No. 83-CJ-1396.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Richard J. Brazan, Jr., Baton Rouge, for plaintiff-appellant.
    Carl Jackson, Pam Moses, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

Woodrow Joseph Wisham, born August 16, 1972, was adjudged a neglected child in 1973 and placed in the temporary custody of the Division of Family Services, Louisiana Health and Social and Rehabilitation Services Administration.

In 1983, the State of Louisiana sought to terminate the parental rights of Woodrow’s mother, Rose Mae Price, under the provisions of LSA-R.S. 13:1601(B), (D) and (F). Essentially, the State alleged Ms. Price to be an unfit mother.

Following a lengthy hearing, at which the trial judge closely questioned Ms. Price on many of her child rearing practices, he found Woodrow’s mother not to be unfit and, in oral reasons issued from the bench, expounded thereon at length. The State has appealed, its sole claim being that the trial court erred in its decision.

The United States Supreme Court has decreed, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Louisiana has statutorily provided, LSA-R.S. 13:1603, that parental rights may not be terminated absent evidence found to be at least clear and convincing.

For us to reverse the trial court’s decision, we would have to find that the lower court was clearly wrong in not finding the State’s evidence to have been clear and convincing. Such a standard of review raises an almost insurmountable barrier to the State when it loses a case such as this at trial. It is akin to the State, were it permitted, claiming that a jury, based on the facts, should have found a defendant guilty.

A searching review of the entire record reveals not only that the State fell woefully short of proving its case, but that the experienced trial judge was absolutely correct in his decision. There was no real evidence of parental unfitness. To the contrary, the State’s own witnesses showed Ms. Price to be adequately raising five other children.

For the foregoing reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed against appellant in the amount of $50.00.

AFFIRMED.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Frank BETHLEY.
    No. 83 KA 1415.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Nathan Fisher, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Frank Bethley was charged by bill of information with possession of pentazocine with intent to distribute, in violation of La.R.S. 40:967 A. The defense filed a motion to suppress evidence which was denied after a hearing. Defendant thereafter pled guilty as charged, reserving the right to appeal the trial court’s denial of the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The court sentenced defendant to serve four years with the Department of Corrections without the benefit of probation, parole or suspension of sentence.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence seized by two Baton Rouge police officers at the time of his arrest.

Evidence adduced at the suppression hearing and at the earlier preliminary examination (which was adopted into evidence at the suppression hearing) reveals that at about 8:45 p.m. on July 10, 1982, Detective Jurgen Himpler and Corporal Michael Dickinson of the Baton Rouge City Police Department were on routine patrol in civilian dress and in an unmarked police car. As they approached the intersection of 35th and Cain Streets heading east on Cain, the officers first observed defendant and another man. Defendant and the other man were standing side by side in the middle of the block on the north side of Cain Street facing Cain Street traffic.

According to Himpler, that area of Cain Street is renowned as being “a pretty heavy spot for drugs, guns and whatever else.”

Because of defendant’s stance and location, the officers’ attention was focused on him as they slowly proceeded east. Both officers admitted that they had no prior personal knowledge of defendant or any involvement he might have had in drug trafficking.

However, as the unmarked police vehicle moved directly parallel to defendant, both officers observed a matchbox fall to the ground from defendant’s right hand.

Dickinson testified that he then exited the vehicle, walked over and picked up the matchbox and looked inside. Himpler confirmed that neither he nor Dickinson had exited their vehicle until after the matchbox had been dropped by defendant. After alighting from the vehicle, Himpler did identify himself as a policeman and ordered defendant not to move while Dickinson examined the contents of the matchbox.

After making a preliminary determination that the matchbox contained 20 sets of pills, half of which were talwin (pentazo-cine), defendant was questioned and thereafter arrested.

The Fourth Amendment to the U.S. Constitution and La. Const, art. I, § 5 protect against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, 434 So.2d at 391.

When police officers make an investigatory stop without legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. State v. Ryan, 358 So.2d 1274 (La.1978). If, however, the property is abandoned without any prior unlawful intrusion into a person’s right to be free from government interference, then such property may be lawfully seized. State v. Belton, 441 So.2d 1195 (La.1983); State v. Ryan, 358 So.2d at 1276. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. As our courts have previously held, “it is only when the citizen is actually stopped without reasonable cause or when that stop is imminent that the right to ‘be let alone’ is violated.” State v. Ryan, 358 So.2d at 1276.

The crucial inquiry is whether, at the time defendant disposed of the pentazocine, the police officers had effected an actual or imminent unlawful detention.

We do not regard the officers’ conduct in the instant case as intrusive. When they neared the 3500 block of Cain Street, they did not intrude upon defendant’s freedom of activity or movement. They did not even stop their automobile and alight until after defendant threw down the matchbox.

Defendant could not expect to carry contraband and drop it with impunity when he saw an approaching police officer. There is no expectation of privacy when property is abandoned and no constitutional prohibition against seizure of abandoned property by police. State v. Ryan, 358 So.2d at 1276. This assignment of error is without merit.

PATENT ERROR

We note, ex proprio motu, an error patent on the face of the record which requires that the sentence imposed be annulled and set aside.

By Acts 1981, No. 219 § 1, effective September 11,1981, La.R.S. 40:964 was amended, thereby changing pentazocine from a schedule IV substance to a schedule II substance. Acts 1982, No. 602 § 1, effective September 10, 1982, added a special penalty provision for violation of La.R.S. 40:967 A when the controlled dangerous substance at issue is pentazocine. That provision now designated as La.R.S. 40:967 B(2), provides for a sentence of imprisonment at hard labor for not less than four years nor more than ten years, without benefit of parole, probation or suspension of sentence and an optional fine.

However, during the period from September 11, 1981, through September 9, 1982, permissible penalties for possession of pentazocine with intent to distribute were governed by then La.R.S. 40:967 B(2) which provided as follows:

Any person who violates subsection A with respect to:
(2) Any other controlled dangerous substance [other than a narcotic drug] classified in Schedule II shall be sentenced to a term of imprisonment at hard labor for not more than ten years; and, in addition, may be sentenced to pay a fine of not more than fifteen thousand dollars.

The instant offense occurred on July 10, 1982. It is well settled that defendant is to be tried and sentenced under the statute in effect at the time of the commission of the crime. Defendant could have been sentenced to a term of imprisonment at hard labor for not more than ten years. It was illegal, however, for the trial court to sentence defendant to a four-year period of confinement without benefit of parole, probation or suspension of sentence. State v. Lindsey, 351 So.2d 1178 (La.1977).

The case must be remanded to the district court for resentencing in accordance with the penalty options in effect on July 10, 1982. La.C.Cr.P. arts. 882 and 916.

We affirm defendant’s conviction but vacate the sentence and remand for resen-tencing in accordance with law.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . The State Police Crime Lab report later verified that the orange tablets were the controlled dangerous substance pentazocine.

      . Pentazocine is defined as a depressant, not as a narcotic drug. See La.R.S. 40:961(23) and (11).

      . Retrospective application of an enhanced sentence is prohibited by Louisiana and United States constitutional provisions prohibiting ex post facto laws. U.S.C.A. Const. Art. 1, § 9 cl. 3; La. Const, art. I, § 23. The prohibition extends to the enforcement of any enactment which changes the punishment to inflict greater penalty than that authorized for the crime at the time of its commission. State v. Robinson, 423 So.2d 1053 (La.1982).


author: WATKINS, Judge.

text:
    Alice H. JONES, Administratrix of the Estate of Beverly Henry, et al. v. PHILCO-FORD CORP., Et Al.
    No. 83 CA 0057.
    Court of Appeal of Louisiana, First Circuit.
    June 26, 1984.
    Writ Denied Oct. 5, 1984.

      Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Alice H. Jones, Adminis-tratrix of the Estate of Beverly Henry, et al.
    Paul Marks, Jr., Baton Rouge, for defendants-appellees Capital City South and Willie Spooner, Jr.
    Eugene R. Groves, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Calvin E. Hardin, Jr., Baton Rouge, for defendants-appellees G.T.E. Products Corp. and Philco-Ford Corp.
    Grayson H. Brown, Baton Rouge, for intervenor-appellee Travelers Indem. Co.
    Before COVINGTON, LOTTINGER, PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

We granted a rehearing because our attention was correctly called to the fact that the minutes of court reveal that the exception of no right of action filed to both the wrongful death and survivorship claims was maintained, rather than overruled, as we had originally stated. There is no doubt that the trial court was correct in finding Mrs. Alice H. Jones was not a proper party plaintiff in her original petition. However, after further consideration, we hold that sufficient notice was given by the Original Petition to effect an interruption of prescription and that the Supplemental and Amended Petition indicated Mrs. Jones possessed a right of action. Therefore, we reinstate our original decision.

The classes of beneficiaries set forth in LSA-C.C. art. 2315 are exclusive and must be strictly construed. As article 2315 does not list successions or succession representatives as beneficiaries for purposes of a wrongful death claim, a succession representative of the person whose wrongful death is sued upon lacks the right of action to pursue such a claim. Cullivan v. State Farm Mutual Automobile Insurance Co., 428 So.2d 1231 (La.App.3d Cir.1983), writs denied 433 So.2d 180, 181 (1983). Likewise, a succession representative of the decedent lacks the right of action to pursue a survivorship claim. Whit- tington v. Hopfensitz, 321 So.2d 836 (La.App. 1st Cir.1975).

However, as we noted in our original opinion, a Supplemental and Amended Petition was filed on March 4, 1982, in which Alice H. Jones appeared as Administratrix of the Estates of Beverly Henry and Corey Henry, and as Tutrix of the minor children, Rhonda Henry, Bruce Henry, and Herley Henry. Although the Supplemental and Amended Petition was filed more than one year after the date of the alleged deaths of Beverly Henry and Corey Henry, the Supplemental and Amended Petition appears to have been filed by a party possessing a right of action, no evidence having been introduced by the defendants to the contrary.

Thus, the sole question is whether or not the filing of the Supplemental and Amended Petition, filed after prescription had run, relates back to the date of the filing of the original petition, which was filed within the one year prescriptive period. Although there may be some authority tending to produce a contrary result, we adhere to the reasoning of our original opinion, that “the elemental basis of legal interruption of liberative prescription in tort suits is informing the defendant of the legal demand.” Nini v. Sanford Brothers, Inc., 276 So.2d 262 (La.1973). In other words, the basic test is sufficiency of notice to the defendant. In Nini, it was held suit for workers’ compensation filed on behalf of a dead man furnished sufficient notice. Further, in Nettles v. Great American Insurance Co., 155 So.2d 87 (La.App.1st Cir.1963), cert. denied 244 La. 1024, 156 So.2d 227 (1963), we held that sufficient notice was afforded by the filing of suit by the father of a man who had attained the age of majority. In the present case, although the Original Petition is inartfully drawn, we cannot say that it fails to afford sufficient notice to defendants that an action for wrongful death is being filed. The circumstances of the deaths are set forth fully. Mentioned as items of damage in the Original Petition are “loss of support and earnings, loss of affection, companionship, society, motherly and brotherly love, and funeral expense (sic).” Thus, although the Original Petition is poorly drawn, we are of the opinion that it furnished defendants sufficient notice of the nature of the claim being brought against them and the circumstances from which that claim arose. True, it failed to indicate Alice H. Jones possessed procedural capacity to pursue a wrongful death claim. However, under the holdings in Nini, supra, and Nettles, supra, it is not always essential that the true party in interest sue in order to effect an interruption of prescription. All that is necessary is that there be sufficiency of notice. In the present case, as we have stated, we find notice was sufficient, so that the filing of the Supplemental and Amended Petition can be permitted to relate back to the Original Petition. Thus, we adhere to our holding that prescription was duly interrupted as to the wrongful death claim.

As to the survivorship claim, the one year period is clearly one of peremption, not prescription. Thus, it was not subject to interruption. Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir.1966), writ refused 248 La. 1106, 184 So.2d 27 (1966). The filing of the Supplemental and Amended Petition came too late with regard to the survivorship claim.

Our original decision is reinstated, at the cost of appellee.

ORIGINAL OPINION REINSTATED.

COVINGTON and CARTER, JJ„ dissent.


author: DOMENGEAUX, Judge.

text:
    HUVAL TRACTOR, INC., Plaintiff-Appellee, v. Gilbert JOURNET, Defendant-Appellant.
    No. 83-695.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 12, 1984.

      Gauthier & Cedars, Ltd., Stanford B. Gauthier, Breaux Bridge, for defendant-appellant.
    J.B. Willis, St. Martinville, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

This appeal arises out of a suit instituted by plaintiff-appellee, Huval Tractor, Inc., against defendant-appellant, Gilbert Jour-net, for the balance due ($32,567.83) on a promissory note executed by Journet.

In a previous suit involving these parties, Huval Tractor, Inc. v. Journet, 413 So.2d 978 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 446 (La.1982), it was shown that Journet purchased an Allis Chalmers tractor from Huval Tractor, Inc., on March 23, 1978, for $8,632.00. Journet made a cash down payment of $2,323.00 and executed a chattel mortgage on the tractor and a promissory note dated March 23, 1978, for the balance remaining. The note, in the amount of $8,067.12 (including interest), was payable in three annual installments commencing December 1, 1978.

On November 25, 1978, Journet contacted Huval, negotiated a credit trade-in of the Allis Chalmers tractor to Huval for $7,200.00, and purchased a Case tractor. Journet executed a chattel mortgage on the Case tractor and a promissory note dated November 25, 1978, for $32,567.83 (including interest), payable in four annual installments. Approximately two weeks after Journet obtained possession of the Case tractor, he returned it to Huval because he was unable to secure financing through the Farmers Home Administration. Huval thereafter sold the Case tractor to a third party. He then commenced suit on June 12, 1979, against Journet for the balance owed on the Allis Chalmers tractor ($8,067.12), in addition to other claims not pertinent here, arising out of the first transaction. It was determined in the initial lawsuit that the existing obligation (the March 23, 1978 promissory note for the Allis Chalmers tractor for $8,067.12) was extinguished by novation, i.e., a new substituted obligation discharging the original debt. The trial judge dismissed Huval’s suit on the March 23, 1978, note and we affirmed. The Louisiana Supreme Court denied Huval’s application for writ of cer-tiorari.

Immediately after judgment in the prior case, Huval instituted the instant proceeding on May 18, 1981. The purchase of the second tractor is the basis of this suit. Huval sued Journet for the principal sum of $32,567.83, claiming that the second promissory note was still viable. However, during the trial Huval’s counsel stipulated that the recovery was limited to equitable relief for the principal sum of the original promissory note; counsel for Huval claimed that it was entitled to only $8,067.12 according to the doctrine of unjust enrichment. The trial judge rendered the decision in favor of Huval, awarding it $8,067.12 based upon the theory of quantum meruit, for the amount due under the extinguished note. Additionally, the trial court ordered title to the Allis Chalmers tractor transferred from Huval to Journet. Journet has devolutively appealed the adverse judgment.

ISSUES

The appellant contends that the ti-ial court erred in awarding $8,067.12 to Huval Tractor, Inc. based upon quantum meruit; and in ordering the title to the Allis Chal-mers tractor transferred to Journet. We agree.

The appellant alternatively contends that if the trial court correctly awarded judgment on the original note, then the Court erred in granting interest and attorney’s fees on the principal and interest. Because of our findings, it is unnecessary to consider this alternative assignment.

QUANTUM MERUIT

The trial court incorrectly resorted to an equitable doctrine when there existed express Code provisions which governed the instant case. La.C.C. Art. 21. The trial judge found an implied or constructive contract, but here the theory of quantum meruit does not apply to recovery for the notes. La.C.C. Arts. 1963, 1965, and 1967.

This Court, in Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir.1976), defined quantum meruit and explained the fundamental purpose of La.C.C. Art. 1965:

“Quantum meruit is an equitable doctrine, based on the concept that no one who benefits by the labor and materials of another should be unjustly enriched thereby. Under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even in the absence of a specific contract therefor.”

At 1195.

Specific laws apply to the obligations between Journet and Huval. The trial court was bound to follow the applicable code provisions in this civil matter.

AN EXTINGUISHED OBLIGATION

During trial, counsel for Huval stipulated that the current suit was not for the principal amount due on the new November 25, 1978, $32,567.83 promissory note, but rather Huval sought to recover the principal amount due on the old promissory note of March 23, 1978, in the amount of $8,067.12. Huval Tractor, Inc. had previously sued the same defendant on the same contractual cause of action for the same relief, and we rendered judgment dismissing that suit. It seems that the issues have already been adjudged. However, the doctrine of res judicata must be construed stricti juris. McNeal v. State Farm Mutual Auto Insurance Company, 278 So.2d 108 (La.1973).

A res judicata objection is a peremptory exception and may be pleaded only prior to submission of the case to trial. Heard v. Heard, 424 So.2d 1177 (La.App. 1st Cir.1982). Res judicata, and prescription, are the only objections raised by peremptory exception that the Court (either trial or appellate) cannot supply or notice; these must be specially pleaded. La.C.C.P. Art. 927. While we recognize that the face of Huval’s petition contained a different contractual cause of action, i.e., the second promissory note (November 25, 1978), the plaintiff actually attempted to resurrect the original promissory note, seeking recovery on the theory of quantum meruit or unjust enrichment. By proceeding as such Huval impelled Journet to defend the second suit without notice that Huval intended to retry the identical issues presented in the initial case. Ruiz v. Succession of Viosca, 291 So.2d 527 (La.App. 4th Cir.1974). Although we maintain that every element for res judicata has been met, on appeal we are precluded from barring this action because Journet did not file a peremptory exception of res judicata as required by La.C.C.P. Art. 927. Further, we are prohibited from converting any other properly pleaded peremptory exception into an exception of res judicata. Mai v. Mai, 419 So.2d 1251 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 970 (La.1982); Ponder v. Stire, 303 So.2d 550 (La.App. 1st Cir.1974); writ denied, 318 So.2d 55 (La.1975). However, we do find that the original note was extinguished by the creation of the new note, thereby effecting a novation. Huval v. Journet, supra, 413 So.2d at 980-981; La.C.C. Art. 2185. Huval’s rights were restricted to the terms of the new obligation. Walker v. Delahoussaye, 116 So.2d 884 (La.App. 1st Cir.1959). The fact that the second agreement between Journet and Huval lapsed did not revive the extinguished obligation. Ruiz v. Succession of Viosca, supra, 291 So.2d at 528.

Further, we conclude that the second obligation has been extinguished by payment of the debt. La.C.C. Art. 2130, 2131. Article 2131 provides:

“By payment is meant, not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do.”

Shortly after Journet returned the Case tractor to Huval, Huval sold the Case tractor to a third party. Mr. Huval admitted this sale during the second trial. His testimony also revealed that the second promissory note (November 25, 1978), was can-celled.

The return of the tractor constituted a valid dation en paiement which extinguished the obligation.

La.C.C. Art. 2655 defines a dation en paiement or the giving of an object for the cancellation of the underlying obligation as follows:

“The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due.”

The clear import of this Article is that any debt or obligation, disputed or undisputed, liquidated or unliquidated, may be extinguished in the manner therein provided. St. Landry Credit Plan, Inc. v. Darbonne, 221 So.2d 880 (La.App. 1st Cir.1969).

Huval accepted a dation en paiement from its debtor, Journet. Title to the Case tractor passed to the creditor-donee. Mack Trucks, Inc. v. Magee, 141 So.2d 85 (La.App. 1st Cir.1962). Huval manifested his willingness to receive the tractor by keeping it at the place of business and later selling it to someone else. Although Jour-net did not demand the return of the can-celled note, the delivery to Huval, Inc. and the subsequent sale of the Case tractor by Huval, Inc. (as owner) was sufficient to effect an extinguishment by dation en paiement. Quality Finance Company of Donaldsonville, Inc. v. Bourque, 315 So.2d 656 (La.1975); St. Landry Credit Plan, Inc. v. Darbonne, supra, 221 So.2d at 882-883; La.C.C. Art. 2656.

CONCLUSION

The trial court erred in its determination that plaintiff was entitled to judgment when both the original obligation and the substituted obligation of the defendant were extinguished. It follows therefore, that the trial court further erred in ordering the title to the Allis Chalmers tractor transferred to defendant Journet.

DECREE

For the above and foregoing reasons the judgment of the trial court is reversed and plaintiffs suit is ordered dismissed at its costs, both at trial and on appeal.

REVERSED AND RENDERED.


author: DOUCET, Judge.

text:
    Howard Dwight LAKE, Plaintiff-Appellant, v. Juanita Durand Lake ROBERTSON, Defendant-Appellee.
    No. 83-700.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Ralph W. Kennedy, Alexandria, for plaintiff-appellant.
    James M. Buck, Alexandria, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

Plaintiff-Appellant, Howard Dwight Lake, seeks a change of custody of his minor daughter from the mother to himself. Alternatively, plaintiff seeks joint custody. From an adverse judgment, plaintiff appeals.

These proceedings began in Alabama following the husband’s unilateral removal and detention of the child during a scheduled visitation period. The court in Alabama declined jurisdiction in the matter due to the fact that the mother resided in Louisiana at the time and had been awarded custody. Thereafter, plaintiff filed an action for custody in Grant Parish while maintaining custody of the child in derogation of the Alabama decree ordering the minor be returned to the mother. Defendant responded by excepting to the jurisdiction of Grant Parish due to the fact that her domiciled residence was in Rapides Parish. The Grant Parish District Court upheld the venue exception and subsequently the matter was transferred to Rapides Parish District Court. There, it was ordered that the child be returned to Mrs. Robertson. When the matter was heard on the merits the District Court denied the plaintiff his request for a change of custody.

Plaintiff appeals filing two specifications of error, to-wit: 1) The trial court committed manifest error in failing to award sole custody of the minor child to the father and, 2) Alternatively, the trial court committed an error of law in failing to award joint custody.

Plaintiff introduced substantial evidence casting doubt on the moral fitness of the mother as custodian of the child, however, many of the alleged acts of bad character occurred prior to the birth of the child. Thus, these matters are of only minimal relevance to the best interest of the child, nevertheless, these past acts do tend to show the overall character of the mother. She has been married and divorced a total of four times and, at the time of the trial, was engaged in extramarital relationship with one Felix Peterman. Three private investigators testified as to the mother’s continuing relationship with Mr. Peter-man and the fact that the defendant involves her minor daughter in this relationship by taking the child on nightly visits to the home of Mr. Peterman. It should be noted that these three private investigators were hired by the defendant’s prior husband, Ranee Robertson, and not by the present plaintiff.

In addition, there is testimony by one Lewis Villemarette who testified as to his relationship with the defendant mother which began sometime before her marriage to the plaintiff and continued through a period of time shortly before that marriage. Mr. Villemarette is a convicted felon and he testified that the defendant had participated in one criminal incident (for which he was convicted of battery) by hiding him and his vehicle from the police for a period of two days.

Carol Robertson testified on behalf of the plaintiff concerning the conduct of defendant during the period she was married to Ranee Robertson. He related that the defendant had a violent temper and additionally testified that he had observed his former daughter-in-law fire a pistol in the direction of his son on one occasion.

Mildred Self was also called to the stand and she testified that during the period that plaintiff and defendant were married, both had lived with her a brief period of time and on one occasion, she had been called to the home of a male acquaintance of the mother for the purpose of bringing her home because the defendant was unable to undertake this herself as a result of some physical condition.

Ranee Robertson testified to the pre-mar-ital relationship that existed between himself and the mother before they were married and the fact that the defendant also involved the child in that relationship. He further testified that he obtained his divorce from his wife, the defendant herein, on grounds of adultery.

Daniel Lonowski, a clinical psychologist, with considerable experience in the area of child neglect and abuse, testified that he had evaluated the child and found her to be intelligent and found no evidence of abuse or neglect after the child had been in the custody of the father for a period of a month. He further testified that the child had expressed a desire to live with her father, in preference to the mother although she was unsure whether she wanted to live in Alabama forever. The psychologist attached significance to the child’s preference.

The record discloses that the plaintiff is a businessman in Phoenix City, Alabama, and can provide an adequate home for the minor child and the record further shows that he is a fit and proper person.

The principal consideration in every child custody case is the best interests and the welfare of the child. Bagents v. Bagents, 419 So.2d 460 (La.1982). Appellant contends the record discloses the trial court abused its discretion and the best interests of the child mandates that he be awarded custody. On the other hand, the mother contends that her acts of adultery or promiscuity are insufficient to deny her custody of her child when she is otherwise fit, citing: Johnson v. Johnson, 331 So.2d 854 (La.App. 1st Cir.1976); Nale v. Nale, 409 So.2d 1299, (La.App. 2nd Cir.1982); Manley v. Manley, 389 So.2d 454, (La.App. 2nd Cir.1980) writ denied 395 So.2d 341 (1980); and Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). In addition, the defendant points to the fact that a majority of the states in this country recognize common-law marriages.

A mother’s indiscreet sexual affairs have been found to warrant a change of custody when it is shown that the father is a better parent. Hill v. Hill, 421 So.2d 408, (La.App. 1st Cir.1982); Tabor v. Tabor, 421 So.2d 1185 (La.App. 2nd Cir.1982). We note that all of the above cited cases were decided prior to adoption of our joint custody laws which were in effect at the time of the decree appealed herein.

The moral fitness of the parties is only one of eleven factors to be considered in determining when the presumption in favor of joint custody has been rebutted by a showing that it is not in the best interest of the child. La. C.C. art. 146(C). A parent’s actions and attitudes toward sex outside marriage are but one aspect of moral fitness. Thus, where the only evidence of moral unfitness was the mother’s living with a man she planned to marry, our brethren of the Second Circuit in Peters v. Peters, 449 So.2d 1372 (La.App. 2nd Cir.1984) held the trial judge did not err in granting joint custody and in refusing sole custody to the father.

As was noted in Louisiana’s New Joint Custody Law, 43 LA.L.REV. 759 at 767 (1983): “Although parental fitness is surely still relevant to the best interest of the child, its importance may decrease for several reasons. The presumption in favor of joint custody eliminates the need for each parent to prove that he or she is more fit than the other parent. When joint custody is awarded, it does not matter which parent is ‘more fit’, so long as both are fit.”

La.C.C. art. 157 provides in pertinent part that in all cases for change of custody after the original award, custody shall be granted in accordance with Article 146 which states that joint custody shall be presumed to be in the best interest of the child. The joint custody statutes evidence a legislative policy that both parents should have an equal voice in rearing a child, and participating in decision-making regarding health, education, social and religious development. It reflects a legislative desire to lessen animosity between father and mother, permitting the children to have close relations with both parents.

The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody. La.C.C. art. 146 (A)(2). Our review of the record reveals that the trial judge did not address whether the mother’s continued sole custody would be in the child’s best interest as required by La.C.C. arts. 157 & 146. The issue of joint custody was properly before the trial judge and defendant should have introduced evidence to establish that continued sole custody was in the child’s best interest once the father had established he was a fit parent.

We believe the trial judge is in a better position to determine applicability and allocation of joint custody following the parties’ submission of an implementation plan pursuant to La.C.C. art. 146 (A)(1). The submission of a joint custody plan will allow the court to examine the specifics of the arrangement and determine the parties’ willingness to cooperate. Nevertheless, we note that nothing in article 146 precludes the trial court from developing its own joint custody plan if required for the child’s best interest. Accordingly, under the authority of La.C.C. Pro. art. 2164, we remand this case for the purpose of consideration of implementing a joint custody decree. Cf: Creary v. Creary, 447 So.2d 60 (La.App. 1st Cir.1984). Accord: In Re Marriage of Levin, 102 Cal.App.3d 981, 162 Cal.Rptr. 757 (1980).

For. the reasons assigned, the judgment appealed is vacated as it did not address joint custody and the case is, therefore, remanded for further proceedings consistent with this opinion. Costs of this appeal are to be divided between the parties.

VACATED AND REMANDED.

      . C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
      (1) However, the parents may agree to an award of custody to one parent.
      (2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
      (a) The love, affection, and other emotional ties existing between the parties involved and the child.
      (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
      (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
      (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
      (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (f) The moral fitness of the parties involved.
      (g) The mental and physical health of the parties involved.
      (h) The home, school, and community record of the child.
      (i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
      (k) The distance between the respective residences of the parties.
      (/) Any other factor considered by the court to be relevant to a particular child custody dispute.


author: YELVERTON, Judge.

text:
    Joyce L. ROMERO, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.
    No. 83-713.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Roy & Forrest, L. Albert Forrest, New Iberia, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiff-employee, Joyce Romero, brought this action against her employer’s insurer, State Farm Fire & Casualty Company, for workmen’s compensation benefits. Defendant filed an exception of prematurity which the trial court sustained. The plaintiff appeals. We affirm.

The present appeal was consolidated with another appeal from a subsequent ruling on a separate exception of prematurity arising out of the same claim, Romero v. State Farm Fire & Casualty Co., 452 So.2d 382 (La.App. 3rd Cir.1984). We are this date rendering a separate opinion in the other appeal.

The procedural facts, insofar as they relate to the instant exception of prematurity, are as follows.

The plaintiff was injured on June 28, 1982, and began receiving workmen’s compensation benefits in July 1982. On April 15, 1983, plaintiff filed this suit alleging that her compensation benefits had been terminated on March 30, 1983. State Farm filed an exception of prematurity pursuant to LSA-R.S. 23:1314 which was heard on July 14, 1983. At the hearing John Strange, a field claims representative for State Farm, testified that State Farm had not terminated or denied the plaintiff benefits. Further testimony revealed that State Farm regularly mailed the plaintiff her benefit checks from July 2, 1982, to July 6, 1983, and that a check had been issued on March 29, 1983. The defendant also introduced into evidence copies of the checks issued to the plaintiff including the March 29, 1983, check. The plaintiff admitted that she had been receiving a check every two weeks since her injury and that the only time she did not get one was on March 30, 1983. Based on this evidence, the trial court sustained the exception and dismissed the plaintiff’s suit.

The sole issue on appeal is whether the trial court erred in sustaining the defendant’s exception of prematurity.

The Supreme Court in Patton v. Silvey Companies, 395 So.2d 722 (La.1981), in discussing the exception of prematurity pursuant to R.S. 23:1314, interpreted the statute as follows:

“[3] Our workman’s compensation statute requires that to avoid the employer’s exception of prematurity the workman must allege and be able to prove that, at the time suit is filed, he “is not being or has not been paid, and that the employer has refused to pay” the benefits to which the claimant is entitled; he must show that his allegations are with “... reasonable cause or foundation in fact...”, or else similarly have his suit dismissed as premature. The question of whether or not his allegations are “... justified under the facts shall be determined by the court...” R.S. 23:1314.5
One possible construction of these provisions of R.S. 23:1314 is that justification “under the facts” for the claimant’s allegation of nonpayment concerns whether plaintiff is or is not being paid his compensation, whether the employer has or has not refused to pay. Thus, according to this interpretive version of the statute, most favorable to plaintiff, if he is not being paid at the institution of suit, his suit is not premature.
An alternate interpretation which we consider more reasonable and appropriate is that justification “under the facts” coupled with the outset requirement, ' among others, that plaintiff must allege and prove “the employer has refused to pay” requires the court to determine more than simply whether plaintiff is receiving compensation; rather, the court must determine whether the employer has unreasonably determined to terminate benefits, or has unreasonably refused to pay.
It is by virtue of the latter interpretation that Malone espouses and Jack v. Fidelity and Casualty Co. of New York, supra, has applied the three considerations noted above, namely whether there existed a reasonableness in ceasing to make payments, promptness in resuming them, and manifestation of a desire to cooperate.” (footnote omitted)

In the present case the facts reveal that the defendant has not refused to pay the plaintiff her compensation benefits. The plaintiff has continually received her checks up to the date of the hearing with the exception of the March 30, 1983, payment. The State Farm representative testified that the missing payment in the form of a check dated March 29, 1983, was mailed to the plaintiff. The trial judge evidently believed the witness for State Farm. Under these facts the defendant did not terminate or refuse to pay the plaintiff compensation benefits. The trial court properly sustained the defendant’s exception of prematurity.

For the above reasons the judgment of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.


text:
    Joyce L. ROMERO, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.
    No. 84-313.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Roy & Forrest, L. Albert Forrest, New Iberia, for defendant-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   YELVERTON, Judge.

Plaintiff-employee, Joyce Romero, brought this action against her employer's insurer, State Farm Fire & Casualty Company, for workmen’s compensation benefits. Defendant filed an exception of prematurity which the trial court sustained. The plaintiff appeals. We reverse.

The present appeal was consolidated with another appeal from an earlier ruling on a separate exception of prematurity arising out of the same claim, Romero v. State Farm Fire & Casualty Co., 452 So.2d 380 (La.App. 3rd Cir.1984). We are this date rendering a separate opinion in the other appeal.

The procedural facts, insofar as they relate to the instant exception of prematurity, are as follows.

The plaintiff was injured on June 28, 1982, and began receiving compensation benefits in July 1982. On January 10, 1984, plaintiff filed this suit alleging that her compensation benefits had been wrongfully terminated by the defendant on December 26, 1983. On January 26, 1984, the defendant filed an exception of prematurity. On January 27, 1984, a preliminary judgment as provided by LSA-R.S. 23:1316 was rendered against State Farm because the time fixed by law for filing an answer had elapsed without an answer having been filed by defendant. The judgment ordered the defendant to pay plaintiff $76 per week until a hearing on the merits could be obtained. On February 2, 1984, plaintiff filed a rule to show cause why the defendant’s exception of prematurity should not be declared moot since a preliminary judgment had been issued. Also on February 2, 1984, defendant filed a motion to vacate the preliminary judgment asserting that a responsive pleading (the exception of prematurity) had been filed prior to the preliminary judgment on January 27.

The minutes in the suit record reflect that on February 8, 1984, the court denied the motion to vacate the preliminary judgment. State Farm filed an answer on February 28, 1984. On March 2, 1984, a hearing was held on defendant’s exception of prematurity and on plaintiff’s rule to show cause why the exception of prematurity should not be declared moot. The trial court rendered judgment denying plaintiff’s rule to show cause and sustaining the defendant’s exception of prematurity. These are the rulings that brought this appeal before us.

The ultimate issue on appeal is whether the trial court erred in sustaining State Farm’s exception of prematurity. We find that this was error.

The differences in procedure for the institution of workmen’s compensation suits from that in ordinary suits were discussed in Fontenot v. Great American Indemnity Co., 127 So.2d 822 (La.App. 3rd Cir.1961). One of these differences is that the filing of exceptions to a workmen’s compensation petition does not relieve the defendant of the statutory requirement to file an answer within 10 days after service of plaintiff’s petition. See Duplechien v. States Exploration Company, 94 So.2d 460 (La.App. 1st Cir.1957) and Dolloile v. Landry, 234 So.2d 492 (La.App. 4th Cir.1970).

The purpose of the preliminary judgment is to penalize delay on the part of the defendant and is in the nature of a preliminary assessment against the defendant for his failure to answer. Vizina v. Industrial Indem. Co., 374 So.2d 753 (La.App. 3rd Cir.1979), writ denied 376 So.2d 964 (La.1979). The defendant could have protected itself against a preliminary judgment by filing its answer or obtaining an extension of time for answering from the court. Since the defendant had not answered the petition and had not obtained an extension of time from the court as permitted under R.S. 23:1315, a preliminary judgment upon request was mandatory. The rendition of a preliminary judgment in favor of plaintiff was proper.

The exception of prematurity in a workmen’s compensation case is provided by LSA-R.S. 23:1314. Its purpose is to effect dismissal of a petition premature because of a failure to make allegations which Section 1314 indicates are essential. Nothing in Section 1314, however, indicates that the filing of the answer is affected by the filing of an exception of prematurity. In fact, the contrary appears, for in the succeeding Section 1315 it is required that the defendant answer the petition within 10 days from service, the only exception to this rule being that the court may in its discretion grant further time for filing the answer.

The next succeeding section, LSA-R.S. 23:1316, states as follows:

If the time fixed for filing the answer has elapsed without any answer having been filed, then upon simple request of the petitioner the court shall immediately enter a preliminary judgment in favor of the petitioner in accord with the facts set forth in the petition and the provisions of this Chapter providing for payment of such compensation as is claimed to be payable until such time as the hearing of the issues on the merits is fixed by an order of court at the request of the defendant. The hearing on the merits shall be fixed in the same manner as the first hearing is fixed under R.S. 23:1315. (Emphasis added.)

The above emphasized language indicates that the Legislature intended a preliminary judgment rendered under the provisions of LSA-R.S. 23:1316 to remain in effect until a hearing of the issues on the merits. We find that an exception of prematurity cannot be used to dismiss plaintiffs suit once a court has rendered a preliminary judgment in favor of the plaintiff. For these reasons we find that the trial court erred in sustaining the defendant’s exception of prematurity after a preliminary judgment had been rendered.

For the above reasons we reverse the trial court’s judgment sustaining the exception of prematurity and remand to the district court for further proceedings consistent with this opinion. Costs of this appeal shall be paid by appellant, trial court costs to await the outcome of the trial.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    George EAMES, Plaintiff-Appellant, v. Herbert Orrin JAMES, et al, Defendants-Appellees.
    No. 83-718.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Writ Denied Oct. 12, 1984.

      John Sturgeon, Ferriday, for plaintiff-appellant.
    Nathan M. Calhoun, Jack McLemore, Jr., Vidalia, Lehman Preis, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, C.J., and FOR-ET and STOKER, JJ.
   FORET, Judge.

George Eames instituted this suit against several Tensas Parish landowners for specific performance of a timber sales contract which was allegedly entered into between the parties. At issue on appeal is whether the parties actually entered into a contract for the sale of timber.

In the latter part of the summer of 1983, the timber consulting firm of Newman and Brown, acting agents for the defendants, mailed a “Timber Sales Notice” to several lumber companies in the Tensas Parish area. This document provided in part:

“Sealed bids will be received by Newman and Brown Forestry Consultants, Agents for George B. James, Sr., Herbert 0. James, Nolan E. Rabb, W.C. Gibson, Jr., George B. James, Jr., and Claude L. Rabb, Owners and Sellers, up to and not later than Wednesday 10:00 a.m., September 8, 1982, for 2,637,220 board feet of hardwood sawtimber and 2,414 cords of hardwood pulpwood, Doyle Scale, located on Frenchie Plantation, in Tensas Parish, Louisiana...”

Also sent along with this notice was a map of the tract of land, a sample timber deed, and a volume summary report indicating the amount and types of trees to be sold. Plaintiff was not sent one of these notices or any of the other related items.

On the morning of September 8, 1983, two bids were received by the defendants. Despite never being sent a notice, plaintiff submitted one of those bids and was the higher bidder of the two. Both of these bids were rejected, however, and plaintiff subsequently filed this suit for specific performance.

At the trial, the defendants moved for a directed verdict at the close of plaintiff’s case. The motion was granted by the trial court. Plaintiff now appeals, contending that the timber sales notice constituted an offer for the sale of the timber described therein, and the bid submitted by himself was an acceptance of that offer. Thus, plaintiff takes the position that a valid contract for the sale of timber existed between the parties. Defendants contend that the timber sales notice was merely an invitation to submit a bid and that a valid contract for the sale of timber never existed.

In the common law, it is well settled that a request for bids for the sale of an object is not an offer obliging the one extending the invitation to accept the highest of any of the bids. These requests for bids are considered only as invitations to others to make offers. 17 C.J.S. Contracts, § 48 (1963); William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla.App. 2 Cir.1960). This rule is true even where the call for bids does not reserve the right to reject any and all bids, unless the language explicitly states otherwise. Olson v. Beacham, 102 N.W.2d 125 (N.D.1960); Bromley v. McHugh, 122 Wash. 361, 210 P. 809 (1922).

The aforementioned rule of law is basically the same in Louisiana. For any proposal to qualify as an offer, it must reflect the intent of the author to give to the other party the right of concluding the contract by assent. Where this intent is not present, the proposal cannot be considered an offer, but rather an invitation to negotiate or an expression of willingness to receive offers from others. LSA-C.C. Art. 1803; LSA-C.C. Art. 1813; 1 S. Litvinoff, La. Civil Law Treatise, Obligations, § 130 (1969); Foster v. Tullos, 341 So.2d 85 (La.App. 3 Cir.1976).

Plaintiff contends that the language of the timber sales notice indicates that the defendants intended to be bound by whoever submitted the highest bid. We disagree.

Plaintiff first argues that references to the defendants as “Sellers” throughout the timber sales notice indicates their intent to be bound by the highest bidder. For a proposal to constitute an offer, it must firmly reflect the intent of the author to enter into a contract. A. Levasseur, Precis In Conventional Obligations, a Civil Code Analysis (1980). “Unequivocal words, expressive of mere intent, do not make an obligation.” LSA-C.C. Art. 1814. We find that the reference to the defendants as “Sellers” merely indicates an intent to sell, and does not constitute an offer to accept the highest bid.

Plaintiffs second contention is that the statement, “All merchantable sawtim-ber and pulpwood is to be sold” is a further indication of their intent to be bound by the highest bidder. This statement mentioned by the plaintiff comes directly after a description of the property and before a reference to the volume of timber on the land. This indicates to us that the statement simply gives the bidders a quantative amount of trees upon which to base their bids. LSA-C.C. Art. 1813.

Finally, the plaintiff argues that if the defendants did not desire to be bound by the highest bidder, they should have reserved the right to reject any and all bids. We do not feel that an absence of this reservation, in and of itself, forces the author of the proposal to accept the highest bid submitted. The proposal must be looked at in its entirety. The fact that defendants did not reserve the right to refuse any and all bids is clearly offset by the unequivocal statement that, “Sealed bids will be received”; this only indicates an intention to receive offers from potential buyers.

We conclude, as did the trial court, that the timber sales notice contains no language which would indicate that the defendants intended to be contractually bound by the mere submitting of a high bid. Thus, we find that no timber sales contract existed between the parties.

For the aforementioned reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

APPENDIX

“TIMBER SALE NOTICE

Sealed bids will be received by Newman and Brown Forestry Consultants, Agents for George B. James, Sr., Herbert 0. James, Nolan E. Rabb, W.C. Gibson, Jr., George B. James, Jr., and Claude L. Rabb, Owners and Sellers, up to and not later than Wednesday 10:00 a.m., September 8, 1982, for 2,637,220 board feet of hardwood sawtimber and 2,414 cords of hardwood pulpwood, Doyle Scale, located on Frenchie Plantation, in Tensas Parish, Louisiana, described as follows:

East of the West bank of Black Bayou, containing 480 acres; SE lk Section 9 and SW 'A Section 10, and NE Vi Section 16, Township 10 North, Range 9 East, Ten-sas Parish, Louisiana.

All merchantable sawtimber and pulpwood is to be sold. Attached is a tabulation of the timber to be sold showing the number of trees and board foot volume Doyle Scale, by diameter class at breast height. The sellers do not guarantee the estimated volume of timber and it is suggested that bidders carefully inspect the volume and quality of timber prior to submitting a bid. The bidder will be notified within 24 hours of the bid opening and may have until October 31, 1984, to remove the timber under a written contract with the seller.

The Sellers request the payment to be made as follows: Twenty-five per cent (25%) of the total bid due thirty (30) days after the bid opening. Prior to initiation of the first third of logging operations twenty-five per cent (25%) of total bid price will be due. Prior to initiation of the second third of logging operations twenty-five per cent (25%) of the total bid price will be due. Prior to initiation of the final third of logging operations the final twenty-five per cent (25%) of the total bid price will be due. As logging operations progress, calculation of amount of area cut will be agreed upon by Buyer and Sellers or Sellers representatives.

Bid should be on a lump-sum basis and submitted in an envelope clearly marked “Frenchie Timber Bid.” Bids may be delivered in person to the office of Newman and Brown Forestry Consultants (Paul Green Realty Building) 301 Highway 61, South, Natchez, MS. 39120 or mailed to Newman and Brown Forestry Consultants, 1223 Horseshoe Drive, Natchez, MS. 39120. Bids will be opened immediately after the specified time mentioned above.

No “Show-me-trip” is scheduled, but interested buyers having any questions should contact Newman and Brown Forestry Consultants, Phone 445-2382, Natchez, MS.”

(Letterhead omitted.)

      . Named defendants were Herbert Orrin James, George Bolton James, Sr., Jacquelyn James Gibson, and George Bolton James, Jr.

      . This notice is reproduced in its entirety in the appendix.

      . Defendants also contend that because no sales notice was ever sent directly to plaintiff, he had no capacity to make a valid acceptance of any offer which may have been made by them. Because we find that the defendants never actually made that offer, we need not reach this second question.

      . LSA-C.C. Art. 1813 provides:
      “Art. 1813. Language not evincing intention to contract
      Art. 1813. Even when words are unequivocal and expressive of assent, they are not always obligatory, when from the context, if in writing, or from what in speech is equivalent to it, the words which immediately precede, or follow, it appears that the party did not intend to obligate himself.”


author: STOKER, Judge.

text:
    Sue SMITH, Plaintiff-Appellant, v. STATE of Louisiana, Through DIVISION OF FAMILY SERVICES, DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Defendant-Appellee.
    No. 83-733.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Jacques, Rester & Townsend, Jeff E. Townsend, Jr., Lake Charles, for defendant-appellee.
    Pamela T. Taylor, Baton Rouge, for plaintiff-appellant.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Sue Smith, appeals from the dismissal of her suit against the State Department of Health and Human Resources, Division of Family Services, in which she sought the custody of two children to whom she had been a foster parent. The trial court maintained the State’s exception of no right of action and dismissed the suit. We affirm.

The facts of this case, as we can determine them from the pleadings and briefs in the matter, are undisputed. In 1972 Mrs. Smith and her former husband, Barton Smith, contracted with the State to become foster parents for Shawn M. Root and Burgess Root, ages three years and nine months, respectively. The Smiths were divorced in 1981 or 1982, at which time Mr. Smith alone contracted with the State to be a foster parent to the Root children. A short time later Mr. Smith asked that his contract be canceled, and the children were returned to the State. Mrs. Smith then sought to have the two children placed with her, and the State refused to make the placement. Mrs. Smith then filed the present suit, which is now before us in which she asked that “the custody, care and control” of the Root children be granted to her.

The issue presented for our review is whether a citizen of this State may petition the court for custody of a child currently in the custody of the State. It is our opinion that a citizen has no such right, and the State’s exception of no right of action in this matter was properly maintained.

It is not entirely clear whether Mrs. Smith seeks to be allowed to contract with the State to be a foster parent to the Root children or whether she seeks simply the care, custody and control of the children; however, we find that she has no right of action for either claim. An action can be brought only by a person who has an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse interest. The fact that a plaintiff may suffer damage is not enough unless he has a legally recognized right to be immune from damage by the defendant. LSA-C.C.P. art. 681 and Terrebone Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981), cert. denied 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). We can find no authority to support Mrs. Smith’s claim that she, as a citizen of this State, has a right to seek custody of children in the State’s custody.

We have no information as to how the Root children came to be in the custody of the State; however, it seems to be undisputed that the State properly has custody of the children, as that term is defined in LSA-R.S. 13:1569(11). The State may fulfill its custodial responsibility by entering into foster home contracts with private citizens. LSA-R.S. 46:51(8). Even though the State may contract with foster parents to fulfill its responsibilities, those foster parents are acting for the State in caring for the children, and the State remains the legal custodian of the children. Vonner v. State Department of Public Welfare, 273 So.2d 252 (La.1973).

The State has a superior right and interest in the status of its citizens and the State’s interest in children may go beyond the mere parental right. See Wood v. Beard, 290 So.2d 675 (La.1974) concurring opinion and State ex rel. Harris v. McCall, 184 La. 1036, 168 So. 291 (1936). We are not insensitive to the affection and feelings Mrs. Smith may have for the Root children and we do not intend to diminish the concern she may have for them; however, her only legal connection with the children was through her contract with the State to be one of their foster parents. This connection alone does not give her a legally recognized right to seek custody of the children.

Even the rights of collateral relatives of children are not always paramount. In In re Ryals, 231 La. 683, 92 So.2d 581 (1957), the older brother of an orphaned minor child tried to prevent the adoption of the child. In allowing the adoption the court stated:

“Under the law, however, the brother is not given as a matter of right the care and custody of the child, nor is there any legal duty or obligation upon the former to provide for the latter’s support and maintenance.”

In her petition Mrs. Smith makes the following assertion:

“It is in the best interest of the two minor children to be in the care, custody, and control of Sue Smith and ultimately to be adopted by Ms. Smith and it is an arbitrary and capricious mood [sic] on part of the State of Louisiana to take these children away and not allow Ms. Smith the care, custody, and control and eventual adoption of the children.”

If Mrs. Smith has serious intentions of attempting to adopt the Root children, it may be that she has standing to proceed to do that under existing statutes. However, such an effort on her part is not before us because she has not in this proceeding sought adoption. We do not here consider or rule on the question of her right to seek adoption. We do not know what the status of the children is or why they are in the custody of the State. We refer to the matter simply to emphasize it is not before us and we make no ruling one way or the other.

For the above reasons, the judgment of the trial court dismissing the plaintiff’s suit is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: LABORDE, Judge.

text:
    Michael MORRISON, Individually and on Behalf of Eliza Michelle MORRISON and Elizabeth Livings, Plaintiffs-Appellants, v. James C. MILLER, Louisiana Farm Bureau Casualty Insurance Company, United States Fidelity and Guaranty Company, J.W. Romero, Inc., Young and Leach Insurance, Inc., Insurance Co. of North America A/K/A INA Insurance Company, Northern Insurance Company of New York, improperly named herein as Maryland Casualty Co., Defendants-Appellees.
    No. 83-735.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Ralph E. Kraft, Lafayette, and Edward J. Marquet, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, W. Gerald Gaudet, Edward O. Taulbee, IV, Gachassin & Ca-pretz, Nicholas Gachassin, Jr., Mouton & Roy, John Bivins, Lafayette, Deutsch, Ker-rigan & Stiles, Charles F. Seeman, New Orleans, for defendants-appellees.
    Before GUIDRY, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Plaintiffs, Michael Morrison, individually and on behalf of Eliza Michelle Morrison and Elizabeth Livings, appeal from a summary judgment in favor of defendant, Northern Insurance Company of New York, dismissing the plaintiffs’ claims against Northern. We affirm.

Plaintiffs sustained serious injuries which arose out of an automobile collision between the vehicle in which they were passengers and a vehicle driven by James C. Miller, who, according to the plaintiffs, caused the accident by his negligence in driving his car while under the influence of alcohol.

J.W. Romero, Inc. was made defendant in the suit by way of a supplemental and amending petition which alleged that Romero’s selling alcoholic beverages to Miller, the consumption of which produced his intoxication, contributed to the causation of the accident in which appellants sustained their injuries. Northern was brought into the suit by another supplemental and amending petition which alleged that Northern was the liability insurer of Romero and provided a policy of insurance covering the claims of the plaintiffs against Romero.

Northern moved for summary judgment asserting that the policy sold to Romero did not afford liability coverage for the plaintiffs’ claims. After hearing the argument on the motion, the trial court rendered summary judgment in favor of defendant, Northern.

A summary judgment is proper where there is no genuine issue of materia] fact and where the mover is entitled to a judgment as a matter of law. State, Etc. v. City of Pineville, 403 So.2d 49 (La.1981). A review of the record reveals that a summary judgment was proper.

In this case, it is undisputed that the insurance policy issued by Northern to Romero provided:

“This insurance does not apply: ... (h) to bodily injury or property damage for which the insured ... may be held liable (1) as a person or organization engaged in the business of manufacturing, distributing, selling, or serving alcoholic beverages ...”

As a general rule, ambiguities in an insurance policy will not be interpreted in favor of the insurer. This rule, however, does not apply if the language of the policy is clearly unambiguous, for the court cannot disregard the “plain letter of the insurance contract” under the pretext of interpreting an ambiguity where none exists. Thomas v. Protective Life Insurance Company, 319 So.2d 878 (3rd Cir.1975). In this case, the clause clearly states that Northern’s policy does not provide coverage for bodily injury for which the insured may be held liable as a result of the sale of alcoholic beverages. The clause is not ambiguous and, thus, cannot be interpreted to provide coverage.

Since there is no coverage, the plaintiffs cannot seek recovery from Northern. We conclude that Northern’s policy does not provide coverage. Plaintiffs’ suit against Northern should be dismissed.

Since the policy clause eliminates any genuine issue of material fact and the defendant is entitled to judgment as a matter of law, the judgment of the trial court is affirmed. Costs are assessed against plaintiffs-appellants.

AFFIRMED.


author: CUTRER, Judge.

text:
    Raymond ARVIE, Plaintiff-Appellant, v. CENTURY TELEPHONE ENTERPRISES, INC., et al., Defendants-Appellees.
    No. 83-734.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    William R. Boles, Jr., Monroe, for defendants-appellees.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   CUTRER, Judge.

The sole issue presented by this appeal is whether the trial court correctly sustained defendant’s exception of one year prescription to Raymond Arvie’s suit alleging wrongful employment discharge.

The plaintiff filed suit alleging that his former employers, Century Telephone Enterprises, Inc. and Evangeline Telephone Company, had wrongfully discharged him from employment. The trial court held that the one year prescriptive period applied and ordered a dismissal of the suit. Plaintiff appeals, we affirm.

PACTS

The plaintiff was employed on October 13, 1980, by defendants as an installer-repairman, earning $9.00 per hour, when he sustained a job-related injury. After this injury, the plaintiff was discharged from his employment on December 17, 1980. The plaintiff filed suit more than two years later on January 21, 1983, alleging that he was wrongfully discharged. The plaintiff alleges that the discharge was wrongful' because he was discriminated against in two ways: First, his discharge was brought about by the fact that he had a workmen’s compensation claim against defendants and a discharge was in violation of LSA-R.S. 23:1361. Secondly, plaintiff alleges that he was discriminated against by virtue of his race. The plaintiff seeks reinstatement with back pay or, in the alternative, reimbursement in the form of damages. There is no contention that plaintiff had entered into a written contract for a fixed term. He was employed on a day-to-day basis.

It is plaintiffs position that his main demand (reinstatement and back pay) is a demand in contract and is subject to a ten year prescriptive period under LSA-C.C. art. 3544.

In support of this position, plaintiff cites an article appearing in the legal publication known as “Trial.” This article states that some jurisdictions are holding that, even though a person’s employment is not for a fixed term (as was the plaintiff’s situation in this case), there existed an implied contract between the employee and employer, that imposes upon the employer a contractual duty to discharge or terminate employment only for good and just causes. The article cites a Michigan case for this view.

While this rule of implied contract may be applicable under Michigan law, it is not the law of this state. We have been cited no law, nor do we find any provision, that reads such an implied contract into an employee-employer relationship in this state. Thus, a contract prescriptive period is not applicable to the action of plaintiff.

The plaintiff next contends that, since his wrongful discharge arose out of discrimination on the basis of race, it is subject to a three year prescription, citing the case of Eakin v. Ascension Parish Police Jury, 294 So.2d 527 (La.1974). That case involved an action based upon sex discrimination and was brought under the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. Sec. 201 et seq. This act contained specific prescription periods, one of which was three years, which was applied in that case.

The allegation of plaintiff in this ease refers to discrimination on the basis of race. This action arises under the Civil Rights Act of 1964. Such actions are prescribed by a one year prescriptive period. This issue was addressed in the case of Page v. U.S. Industries, Inc., 556 F.2d 346 (5th Cir.1977), cert den., 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978). The case involved a claim by an employee that he was wrongfully discharged due to race. The court held as follows:

“In Sims v. Orleans Railway & Light Co., 134 La. 897, 64 So. 823 (1914), the Louisiana Supreme Court defined ‘offenses and quasi-offenses’ as infringe- merits of some right personal to the individual or the violation of some duty imposed by law. Louisiana federal district courts have used this definition to hold that actions under )2 U.S.C. § 1983 for state deprivations of civil rights constitute ‘offenses and quasi-offenses’ with the prescriptive period of one year found in La. Civ. Code art. 3536. See Heyn v. Board of Supervisors, 417 F.Supp. 603, 604-05 (E.D.La.1976); Whitsell v. Rodrigues, 351 F.Supp. 1042, 1044 (E.D.La.1972). Similarly, we believe that the definition of ‘offenses and quasi-offenses’ includes actions under section 1981. As we noted recently, section 1981 cases arise independently of any contractual agreement between employee and employer, see Ingram, supra at 1263; instead, they arise from the employer’s violation of his duty not to violate the plaintiffs civil rights secured under section 1981. Cf. Loggins v. Steel Construction Co., 129 F.2d 118 (5th Cir.1942) (alternative holding that art. 3536 applied to violation of positive provisions of Fair Labor Standards Act). When an employer discriminates on the basis of race in violation of section 1981, he has violated a duty imposed by law — he has committed an ‘offense or quasi-offense. ’ Thus, actions giving rise to section 1981 claims are proscribed by the one-year provision of Louisiana Civil Code art. 3536. See O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914).”

See also, Jones v. Orleans Parish School Bd., 679 F.2d 32 (5th Cir.1982), cert den., — U.S. -, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983).

In the case at hand, a discrimination action based upon race is prescribed by one year prescription.

As to the allegation that plaintiff was wrongfully discharged due to the assertion of a workmen’s compensation claim, this claim is likewise a discrimination claim. The statute which serves as a basis for this claim is LSA-R.S. 23:1361 which provides as follows:

“A. No person, firm or corporation shall refuse to employ an applicant for employment because of such applicant having asserted a claim for worker’s compensation benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought.
“B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
“C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provision of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with a reasonable attorney’s fee.” (Emphasis added.)

The underlined portion of this provision labels the action as a discrimination, the violation of which creates a civil liability for one year’s wages and attorney’s fees. No prescriptive period is set forth. This action is likewise barred by a one year prescription. Stephens v. Justiss-Mears Oil Company, 300 So.2d 510 (La.App. 3rd Cir.1974) holds that such an action is a tort.

In conclusion, we find that the plaintiff has stated one cause of action and that is for wrongful discharge which is a tort. Tort actions are barred by one year prescription under LSA-C.C. art. 3536. The trial court correctly sustained the exception of prescription filed by defendants.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal shall be paid by appellant, Raymond Arvie.

AFFIRMED.

      . The plaintiff filed a workmen’s compensation suit on March 16, 1981. This claim was settled in July 1982.

      . This cause of action arose prior to the 1984 amendments to the prescriptive articles. Therefore, the articles cited are those in effect at the time the cause of action arose.

      . A person, who is employed on a day-to-day basis as was the plaintiff herein, can be dismissed at the will of the employer. The only limitation on the employer’s "at will" dismissal is the discrimination provisions of the law.