text:
    Annie R. FREE, as Provisional Curatrix of Jessie E. Free, Plaintiffs-Appellants-Appellees, v. FRANKLIN GUEST HOME, INC. and Houston General Insurance Company, Defendants-Appellees-Appellants.
    No. 16718-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Rehearing Denied Feb. 22, 1985.
    Writs Denied April 19, 1985.

      Bruscato, Loomis & Street by Anthony J. Bruscato, Monroe, for plaintiffs-appellants-appellees, Annie R. Free, Laris Gene Free, Percy Free, and Annie Geraldine Free Ban Auken.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, and Samuel T. Singer, Winnsboro, for defendants-appel-lees-appellants, Franklin Guest Home, Inc. and Houston General Insurance Company.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

This is an appeal from a judgment pursuant to a jury verdict in favor of plaintiff for $15,000 in a suit brought against a nursing home on behalf of Jessie E. Free, a resident of the home and a victim of a progressive mental deterioration known as Alzheimer’s disease. This appeal is a sequel to this court’s previous decision, Free v. Franklin Guest Home Incorporated, 397 So.2d 47 (La.App. 2d Cir.1981), writ denied 401 So.2d 975 (1981), which addressed issues of prescription. Our previous decision outlined the factual background of the case as of that time:

Mrs. Free, as provisional curatrix of her husband, filed suit on August 18, 1978 against Franklin Guest Home, Inc. and its liability insurer, Houston General Insurance Company, seeking damages arising out of several incidents which were alleged to have occurred between June, 1974 and February, 1978 while Mr. Free was a resident of the defendant nursing home. The specific incidents alleged in the petition were: (1) In 1975 Mr. Free had two severe cases of pneumonia brought about by neglect of the nursing home, requiring several weeks of hospitalization on each occasion; (2) in 1976 Mr. Free was severely burned while being given a bath by a male orderly; (3) in 1976 Mr. Free was attacked by a fellow patient and struck over his left eye and on the back of his head, all as the result of lack of supervision and care on the part of the defendant nursing home; (4) at an unspecified time Mr. Free was sexually attacked by another male patient, due to improper supervision and attendance by the personnel and supervisors of the defendant nursing home; and (5) in October 1977 Mr. Free sustained a compound fracture of the left hip and a simple fracture of the right hip, which injuries were not discovered until he was hospitalized for other reasons. The plaintiff alleged that “the abuse, indecent treatment, lack of care and supervision, and at times, total neglect, and episodes of totally inhuman injustices, which occurred to Mr. Free while a resident of Franklin Guest Home, resulted solely from the neglect and negligence of the defendant nursing home which allowed injuries and inhuman treatment to be visited upon this sick, aged, and hopelessly weak individual.” Plaintiff sought damages for past and future pain and suffering, past and future mental anguish and distress, permanent injuries, refund of payment made to the defendant for care and attendance and past and future medical expenses.
Defendants filed an exception of prescription of one year under LSA-C.C. Art. 3536 as to the first four incidents mentioned above which occurred more than one year prior to the time suit was filed.
Plaintiff then amended and supplemented her petition alleging the existence of a written contract with the defendant and specifically pleading that defendant breached its express contractual obligations in the respects previously alleged and that the damages previously alleged were caused by defendant’s breach of its contractual obligations.
After trial of the exception the district court held that plaintiffs claim is one in tort and not in contract. The court held that the plaintiff’s claim was based on the general duty of a nursing home to its patient to furnish reasonable care and that an action ex delicto arises from the breach of a general duty while an action in contract springs from special duties. Accordingly, the court held the one-year prescriptive period applicable. Judgment was rendered sustaining the exception of prescription as to the claims for damages resulting from the two cases of pneumonia in 1975, the burns sustained in 1976, and the physical assault in 1976. The exception was overruled as to the claims for damages resulting from the sexual assault (of which plaintiff had no knowledge until within one year prior to filing suit) and the broken hips. Plaintiff appealed.

This court’s decision on appeal held that, considering two documents signed and issued at the time Mr. Free was admitted to the nursing home, a contractual relationship existed between the Franklin Guest Home and the appellant, and that appellant was entitled to bring an action for breach of contract against the nursing home, even though such a breach might also give rise to tort liability. Because the action for breach of contract had not prescribed under the ten-year prescriptive period provided in LSA-C.C. Art. 3544, the case was remanded to the district court for trial on the merits.

At the trial on remand, the plaintiff sought damages for the incidents enumerated above. The jury found the plaintiff was entitled to recover only for the incident in which burns were received, and awarded plaintiff $15,000. Costs were assessed against the nursing home as defendant.

Both plaintiff and defendant filed a motion for JNOV and for a new trial. Before these motions were ruled upon, Jesse Free died on January 6, 1984, and his wife and children were substituted as parties plaintiff. The parties’ motions for JNOV and for a new trial were denied and both parties appealed.

Plaintiff-appellant asserts five assignments of error:

1. The jury erroneously concluded that there was no breach of contract in the nursing home failing to provide proper care for Jessie E. Free, resulting in hospitalization for a severe case of pneumonia.
2. The jury erroneously concluded that the nursing home did not breach its contract or commit negligence in Jessie E. Free being sexually assaulted by another male patient.
3. The jury erroneously concluded that the nursing home did not breach its contract in Jessie E. Free being physically abused by another patient assigned to his room.
4. The jury erroneously concluded that the nursing home did not breach its contract or commit negligence in Jessie E. Free sustaining fractures to the left and right hip.
5. The trial judge committed error in failing to grant a judgment notwithstanding the verdict since there was no reasonable factual basis to support the jury verdict.

Defendant-appellant also asserts five assignments of error:

1. The jury erred in holding that the burn suffered by Jessie Free, August 27, 1976 constituted a breach of the nursing home contract to provide nursing case.
2. The trial court committed error in instructing the jury as to the doctrine of res ipsa loquitur.
3. Alternatively, the trial court committed error in improperly instructing the jury in the damages which may be recovered under a claim for breach of contract in that the trial court:
a. Failed to instruct damages arising from the breach of a contract for nursing care are limited to pecuniary losses as opposed to non-pecuniary losses; and
b. The trial court instructed the jury that it had discretion in fixing damages for a breach of contract.
4. Alternatively, the jury abused its discretion in awarding $15,000.00 general damages to Jessie Free as a result of the burn suffered by him.
5. The trial court erred in casting the defendants for all of the costs in connection with the trial of the action.

For the reasons set forth below, we find merit only in the defendant’s assignment of error addressing quantum, and otherwise affirm the judgment of the district court.

HOSPITALIZATION FOR PNEUMONIA

While plaintiff-appellants contend that lack of proper care by the nursing home staff was responsible for Mr. Free’s contracting pneumonia and having to be hospitalized, the testimony of Dr. Hollis Rogers, who attended Mr. Free when Mr. Free was a patient in the nursing home, indicated not only that a nursing home could not eliminate the risk of its patients contracting pneumonia, but also that it was common for such elderly patients to contract pneumonia. Dr. Rogers was the only physician to testify at trial about the risk, and from his testimony the jury could have reasonably concluded that Mr. Free’s pneumonia was not the result of lack of care by the nursing home. Thus, plaintiff’s assignment of error on this point is without merit.

SEXUAL ASSAULT

The jury awarded no damages for an incident in which Mr. Free was allegedly sexually assaulted by a psychiatrically impaired male resident who had been accepted for care by the nursing home on recommendation of the staff of the state hospital in Jackson, Louisiana. Plaintiff-appellants contend the jury’s failure to award damages was error. The only witness to the incident in question was Mrs. Bobbie Norris, a nurses aide, who walked into the room of the male resident, Mr. Ernest Bou-dreaux, and discovered Mr. Boudreaux standing behind Mr. Free whose pants were down. Mr. Boudreaux, when surprised by Mrs. Norris, jumped back from Mr. Free while pulling Mr. Free’s pants up. However, Mrs. Norris also testified that Mr. Boudreaux’s pants were not down, and that she could not see Mr. Boudreaux’s penis. Furthermore, Mr. Free appeared calm, and apparently was in no pain. From this testimony the jury could have reasonably concluded that Mr. Boudreaux did nothing more than pull Mr. Free’s pants down. While such action may technically be considered an assault, no damages necessarily had to be awarded since Mr. Free would not have suffered physically or mentally from that act.

The record indicates that the nursing home had no prior indication that Mr. Bou-dreaux possessed any homosexual tendencies, and that homosexual behavior was not associated with Mr. Boudreaux’s particular psychiatric impairment. Gertrude Jackson, a nurses aide at the home, testified that she had seen Mr. Boudreaux pull Mr. Free’s pajamas down before, and had seen Mr. Boudreaux try to get in bed with other residents. Mrs. Jackson did not indicate, however, that Mr. Boudreaux had actually attempted to engage in sexual relations with any of the residents. Furthermore, Mrs. Eloise Scott, the director of nurses, testified that it was not at all unusual for one elderly patient to undress another.

Finally, while Mrs. Free, who learned of this incident in 1977, recalled finding her husband bleeding rectally on an occasion in 1975, Janie Morris, a L.P.N. at the home, testified that Mr. Free had problems with constipation and occasionally had to have fecal impactions removed. She noted two such occasions in 1975 which were recorded in the nurses notes. Dr. Rogers testified that removing such impactions could result in stretching rectal tissues which in turn could cause bleeding of the tissues.

The evidence outlined above indicates that the jury’s decision not to award damages for the incident of alleged sexual assault was not clearly wrong. This decision will not be overturned on appeal.

PHYSICAL ASSAULT

Plaintiff-appellants assert the jury erred in not finding the nursing home had breached its contract by allowing Mr. Free to be physically abused by his roommate. Bruises on Mr. Free’s face were alleged to have been caused when Mr. Free’s roommate, a Mr. Garner, struck Mr. Free with his cane. No direct evidence was presented to support this claim. While Mrs. Free testified that Mr. Garner used his cane to strike at aides, and that Mr. Garner tried to strike Mr. Free’s son on one occasion, no testimony was presented to the effect that Mr. Garner had ever struck, or had ever attempted to strike Mr. Free. Additionally, Dr. Rogers testified that Alzheimer’s disease is characterized by some involuntary jerkiness which could cause an individual to bump into objects and receive bruises. The jury was not clearly wrong in choosing to believe that Mr. Free’s bruises were not inflicted by Mr. Garner.

HIP FRACTURES

Mr. Free was hospitalized on October 3, 1977, for treatment of a urinary tract infection. On that date x-rays were taken which coincidentally revealed portions of Mr. Free’s pelvic region. On October 30 and 31, 1977, during the same hospital stay, X-rays showing the pelvic region were again taken. These later X-rays revealed fractures of the left femur and the right acetabulum or hip socket. Dr. David Lawrence, a radiologist, testified that he could say unequivocally that the fracture of the right acetabulum occurred after October 3rd and thus while Mr. Free was in the hospital. He also stated that in his opinion, the fracture of the left femur was six to twelve weeks old as of October 30, 1977. This would place the occurrence of the fracture at a time prior to Mr. Free’s being admitted to the hospital. Dr. Douglas Brown, an orthopedic surgeon, expressed no firm opinion as to when the right acetabulum was fractured, but highly suspected that the fracture of the left femur occurred before October 3rd. Thus there was medical testimony presented from which the jury could have reasonably concluded that the right acetabulum fracture occurred while Mr. Free was under the supervision and control of the hospital and not of the nursing home. On the other hand both doctors agreed that the fracture of the left femur probably occurred before Mr. Free’s hospitalization. As noted above, Dr. Lawrence estimated the age of that fracture as six to twelve weeks as of October 30, 1977. Even accepting an estimate nearer six weeks as correct, an examination of Mr. Free’s whereabouts during that period reveals that he was not under the exclusive supervision and control of the nursing home for the entire period. Mr. Free had been a patient at the Franklin Parish Hospital from September 9 through September 20, 1977, for treatment of pneumonia. Furthermore, he was transported to and from the hospital by an ambulance service. The jury could have concluded that the evidence was insufficient to prove that the fracture occurred when Mr. Free was in the nursing home instead of when he was in the hospital or being transported to or from the hospital.

Plaintiff-appellants note nursing home records that indicate Mr. Free was apparently in good condition after returning from his September hospital stay, but that indicate an abrupt change for the worse on September 29th continuing until his read-mittance to the hospital on October 3rd. This change was manifested by elevated temperature and apparent physical pain. While Dr. Rogers testified that this change could have been the result of the hip fracture, he also stated that similar symptoms could accompany urinary tract infection, suspicion of which was the reason for Mr. Free’s readmittance to the hospital on October 3rd.

When the record reveals a reasonable factual basis for the findings of the trier of fact, and those findings are not manifestly erroneous, an appellate court should affirm the judgment made in the lower court. Savoie v. Judice, 458 So.2d 659 (La.App. 3rd Cir.1984); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). The record in this case provides a reasonable factual basis for the jury’s verdict, and these findings are not clearly wrong. Thus, the jury’s refusal to award damages against the nursing home for the hip injuries will not be disturbed.

PLAINTIFF-APPELLANT MOTION FOR JNOY

Because all the plaintiff-appellant’s specifications of error regarding the jury verdict are rejected for the reasons discussed above, the plaintiff-appellant’s specification of error asserting that JNOV should have been granted because there was no reasonable factual basis to support the jury verdict must also be rejected.

REFUND OF PAYMENTS

Plaintiff-appellants seek an $18,718.17 refund from the nursing home in addition to damages sought for the particular incidents noted in their assignments of error. This claimed refund represents the total amount of payments made by the Frees for the care provided by the nursing home. Plaintiff-appellants cite LSA-C.C. Art. 1965 which addresses the basis of equity, and assert that it would be incongruous for the nursing home to receive payment in light of the nursing home’s lack of care of Mr. Free.

The jury awarded damages for only one of the several breaches of contract alleged by plaintiff-appellants. As discussed below, a proper remedy for this breach is an award for Mr. Free’s pain and suffering incident to the breach. Since that award is adequate compensation, plaintiff-appellants are not additionally entitled to a refund of all payments made for the services contracted for and received by Mr. Free. Such a refund is not called for by either the actual terms of the contract or by the equitable provisions of Article 1965.

RES IPSA LOQUITUR; MR. FREE’S BURNS

The proper role of the doctrine of res ipsa loquitur in this case is of particular importance with regard to first and second degree burns on Mr. Free’s back which were apparently caused by contact with a hot liquid. Defendant-appellants argue that the trial judge’s instruction to the jury on the doctrine of res ipsa loquitur was confusing because it failed to explain that it was the jury’s province to decide whether the doctrine was applicable. Defendant-appellants further argue that the instruction was unwarranted.

After reviewing the trial judge’s instruction, we find the instruction was not confusing, but adequately set forth the doctrine of res ipsa as well as the circumstances under which the doctrine would apply. The judge did not tell the jury that the doctrine did or did not apply in this case, but simply told the jury the circumstances under which the doctrine would apply. The obvious inference was that the jury should make the determination of applicability.

The other portion of defendant-appellants’ argument on this issue is that an instruction on res ipsa was unwarranted since Mr. Free was not in the “exclusive” custody of the nursing home, and since his injury was not one which would only occur by the nursing home’s negligence. Defendant-appellants hypothesize that Mr. Free may have suffered his injury through the negligence of someone for whom the nursing home would have no responsibility.

The Louisiana Supreme Court long ago stated the fundamentals of the doctrine of res ipsa loquitur in the case of Lykiardo-poulo v. New Orleans and C.R. Light and Power Company, et al., 53 So. 575,127 La. 309 (La.1910):

In cases where the plaintiff cannot be expected to have any information as to the causes of the accident, whereas the defendant, on the contrary, must be assumed to be fully informed on the subject, and where the accident is of the kind which ordinarily do not occur when due care has been exercised, the rule of evidence is that the accident speaks for itself — res ipsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident....

Of course, it is not merely the happening of an accident which creates the presumption of negligence, but the happening of an accident with its attendant circumstances. Jones v. Shell Petroleum Corporation, 171 So. 447, 185 La. 1067 (1936). As stated in the more recent case of Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979):

Res ipsa loquitur is merely a rule of circumstantial evidence whereby negligence is inferred on the part of the defendant because the facts indicate such to be the most probable cause of the injury. The real test of applying res ipsa loquitur is: Do the facts of the controversy suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident? ...

Under the facts and circumstances of this case, with particular reference to the burns received by Mr. Free for which the damages were awarded, Mr. Free and his family plainly could not be expected to provide information as to the cause of the accident. On the other hand, the nursing home, whose duty it was to provide total care for Mr. Free, was by far in the best position to know the cause of this unusual occurrence.

We note, parenthetically, that under the nursing home’s duty, the home did take “exclusive” custody of Mr. Free. Taking such custody did not mean that Mr. Free would not come into contact with other residents of the home or with visitors to the home.

In the absence of direct evidence to explain the unusual occurrence at issue, the judge did not err in deciding that a jury could reasonably conclude that the most likely explanation of the cause of the accident was the nursing home’s lack of supervision and care. It was not necessary that the injury be one that would only occur by the nursing home’s negligence before res ipsa could apply. All that was necessary was that the likelihood of other causes be sufficiently reduced so that the jury could reasonably conclude from a preponderance of the evidence that fault, if any, was attributable to the nursing home. Higginbotham v. Mobile Oil Corporation, 545 F.2d 422 (5th Cir.1977), cert, denied 434 U.S. 830, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977). Taking the circumstances as a whole, defendant-appellants’ mere raising of a possible alternative explanation was not sufficient to eliminate the applicability of res ipsa loquitur, and the judge’s conclusion to instruct the jury on the doctrine was not improper.

The corollary to this conclusion must be that the jury would not have erred in deciding to apply res ipsa loquitur under the circumstances of this case. Thus, they properly could have applied the doctrine, and as a result could have found breach of contract on the part of the nursing home for the burns received by Mr. Free. DAMAGES

Defendant-appellants argue that the trial court should have instructed the jury that damages were not recoverable for non-pecuniary losses. Defendant-appellants further argue that the trial court erred in instructing the jury that it had discretion in fixing damages for a breach of contract. These arguments are based on defendant-appellants’ interpretation of LSA-C.C. Art. 1934 as it read at the time of suit, and under which this issue must be decided. That article stated in part:

Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
* * * * * *
3. Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.

In Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), the Louisiana Supreme Court interpreted this article to

mean that non-pecuniary damages are recoverable for nonfulfillment of an intellectual object of a contract only when that object is a principal or exclusive object of the contract. The court later acknowledged that the rule was “rather inflexible”, and that the rule had received both judicial and scholarly criticism. Gele v. Markey, 387 So.2d 1162 (La.1980). Nevertheless, even under the interpretation given in Mea-dor, supra, we find that the breach of contract in the instant case was such that non-pecuniary damages could be recovered since “intellectual enjoyment” was a principal object of the contract.

The court in Meador correctly noted that Article 1934 first appeared in the Louisiana Civil Code of 1825, that the code was drafted in French and translated into English, and that both the French and English versions are official texts of the code. The court then noted that the following passage from the French article was mistranslated:

Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, ....

A better translation was then given by the court:

Where the contract has for its object the gratification of intellectual enjoyment, such as that pertaining to religion, or morality, or taste, or convenience,

Although the court’s translation was more accurate, a further refinement in the translation is given by Professor Saul Litvi-noff in a scholarly law review article addressing the subject of moral damages. See Litvinoff, Moral Damages, La.L.Rev. 1 (1977). Professor Litvinoff translated the passage from the article as follows:

When a contract was made for the purpose of securing to a party a purely intellectual enjoyment, such as that related to religion, morality, taste, personal comfort or any other kind of satisfaction of that order, ....

Of particular importance in the present case is the more proper translation of the French word “commodite” as “personal comfort” rather than “convenience”. Certainly Mr. Free’s contract with the nursing home was one in which personal comfort was a principal object if not the exclusive object. The contract was not one simply for room, or board, or linens and beddings, but was one for Mr. Free’s complete care and well-being. In a document entitled “Patient’s Rights,” the home promised to treat Mr. Free with “consideration, respect, and full recognition of his dignity and indi-viduality_” Thus, breach of this contract allowed damages for non-pecuniary losses to be recovered. Furthermore, the trial court’s instruction to the jury on discretion in fixing damages was in accord with the language of the article itself which states:

In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, ....

Nevertheless, the amount of damages awarded in this case must be considered excessive. In making this determination we are mindful of the limitation placed upon an appellate court’s disturbing of a trial court award. As stated by the Louisiana Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977):

We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award_ Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court, (citations omitted)

We are also mindful of the role of prior awards in a determination of the proper amount to be awarded in a case presently before a court. As stated in Reck v. Stevens, 373 So.2d 498 (La.1979):

In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, .... (citations omitted)

Photographs of Mr. Free’s burns submitted into evidence reveal two large reddened areas confined to the left side of Mr. Free’s back. Several blisters are also visible although confined to a relatively small area. Dr. Rogers characterized these injuries as first and second degree burns probably caused by contact with a hot liquid. Mr. Free’s burns required no hospitalization, and required no sedatives or medication for relief of pain. All that was needed to treat these burns was the application of an ointment. The burns apparently healed completely within a month with no scarring. While there was undoubtedly some pain associated with the burns, there is no evidence of any particular manifestations of pain or discomfort experienced by Mr. Free.

Considering the relatively minor nature of the burns, the minimal treatment required, the rapid healing, and the apparently minor effect of the injury on this particular injured person, we find that the jury abused its much discretion in awarding $15,000 for this one incident. In determining an appropriate award at the highest point within the discretion of the trier of fact, we consider prior awards for similar injuries.

In Bonnet, etc. v. Slaughter, 422 So.2d 499 (La.App. 4th Cir.1982), a mother was awarded $4,000 for her child’s pain and suffering as a result of painful second degree burns on the right hand and arm caused by hot bath water. The burns were of moderate duration with miniscule scarring. However, because the burns were deep, emergency room treatment, sedatives, and some hospitalization were required.

A $4,500 trial court award was increased on appeal to $8,500 in Huggins v. Hartford Accident and Indemnity Co., 271 So.2d 876 (La.App. 4th Cir.1973). In that case the plaintiff suffered second degree burns to her forearms, hands, parts of both legs, left ear, and first degree burns to her face. She was hospitalized for two weeks, was given moderate doses of narcotics, and was required to undergo painful debriedment of dead skin on several occasions which required increased dosages of narcotics.

Finally, in the more recent ease of Jow-ers v. Commercial Union Insurance Company, 435 So.2d 575 (La.App. 3d Cir.1983), an award of $20,000 general damages was considered appropriate for first and second degree wet concrete burns covering both of plaintiff’s legs from the knee down, including the ankle areas. These burns required nineteen days of hospitalization, including whirlpool treatments, numerous dressings of the burns, and surgical debriedment of the burns, all of which caused pain.

A comparison of the injuries present in this case reveals that the burns received and the treatment employed were more similar in nature to those found in Bonnet than to those found in Huggins or Jowers.

Considering the particular plaintiff under the particular facts and circumstances peculiar to this case, the excessive $15,000 jury award should be reduced to $7,500, the highest amount reasonably within the discretion accorded the jury.

COSTS

Defendant-appellants argue that the trial court erred in casting the defendants for all costs since plaintiffs were successful on only one of their asserted claims, and were denied recovery on the rest. The general rule is that costs are to be paid by the party cast in judgment. LSA-C.C.P. Art. 1920. Moreover, the trial judge has great discretion in assessing costs. Clark v. Laird, 458 So.2d 639 (La. App. 3d Cir.1984). The trial judge’s decision to cast defendants, who were in breach of contract, with the cost of court was not an abuse of discretion and will not be disturbed.

In accordance with the reasons given above, the judgment rendered in the trial court is amended to reduce the amount of the judgment in favor of plaintiffs from $15,000 to $7,500, but otherwise affirmed. Defendant-appellants are assessed with all costs of this appeal.

AMENDED and AFFIRMED.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Leona Gordon OETTINGER, Plaintiff-Appellee, v. Albert OETTINGER, Defendant-Appellant.
    No. 16720-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Writ Denied April 1, 1985.

      Hunter & Jack; Johnston & Thornton by James J. Thornton, Jr., Shreveport, for defendant-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before HALL and FRED W. JONES, Jr., JJ., and PRICE, J. Pro Tern.
   FRED W. JONES, Jr., Judge.

Leona Gordon Gamm Oettinger sued Albert Oettinger for the partition of property allegedly belonging to their community of acquets and gains which was dissolved on July 27, 1978. The defendant answered and reconvened, seeking reimbursement of separate funds and payment for enhancement of Mrs. Oettinger’s separate estate. Oettinger also asserted the unconstitutionality of various pre-1980 matrimonial regime laws.

The trial judge ruled that all assets in Oettinger’s possession on July 27, 1978 belonged to the community, except some shares of stock that Oettinger acquired before the marriage; that the community should reimburse Oettinger for separate funds invested for the benefit of the community; that all assets in the possession of Mrs. Oettinger on July 27,1978 belonged to her separate estate; and that all costs should be assessed against the community.

Oettinger appealed, contending that (1) La.C.C. Article 2386 violated the equal protection clause of the 14th Amendment to the U.S. Constitution in that it allowed a wife but not a husband to file a declaration of paraphernality; (2) the “double declaration” rule also violates the same clause of the 14th Amendment because it places a greater burden on the husband than the wife to establish separate property; and (3) application of Act 709 of 1979 should be employed to eliminate the “double declaration” rule.

For the reasons hereinafter explained, we affirm the judgment of the district court.

The facts of this case are undisputed. The Oettingers, each of whom had been previously married, were married on November 23, 1967. Each had substantial assets prior to this marriage.

On November 14, 1967 and again on December 19,1967, Mrs. Oettinger filed declarations of paraphernality under then La. C.C. Article 2386. Oettinger was unaware of either declaration.

It is apparent from the record evidence that during their marriage the parties attempted to maintain their finances separately. Oettinger gave his wife an allowance to defray part of the expense of operating their household. Their dwelling belonged to Mrs. Oettinger’s separate estate. They never made any major purchase jointly nor did they invest together.

Assets possessed by Oettinger at the dissolution of the community were purchased with money held in his personal checking account. Funds from various sources were placed in this account, including the following: $235,150 drawn from his business as salary; money derived from the sale of stock belonging to his separate estate; proceeds from investments.

Oettinger argues that he kept careful records of all money going into and out of this bank account and that it is possible to distinguish between community and separate funds. We agree with the trial judge, however, that the funds in this account were co-mingled to the extent that they became indistinguishable. Consequently, this checking account must be characterized as belonging to the community and any purchases made therewith belonged to the community. Gregory v. Gregory, 223 So.2d 238 (La.App. 3rd Cir. 1969); Odom v. Odom, 121 So.2d 8 (La. App. 2d Cir.1960).

In light of this holding, it is unnecessary to discuss Oettinger’s contentions concerning his heavier burden of proof, the unconstitutionality of the “double declaration” rule, or the suggested retroactivity of Act 709 of 1979.

Addressing the status of the property held by Mrs. Oettinger on July 27, 1978, it is clear that the application of then La.C.C. Article 2386 and the declarations of para-phernality filed by Mrs. Oettinger resulted in the classification of the fruits of her separate property as belonging to her separate estate. Conversely, our law provided no such option to Oettinger.

La.C.C. Article 2386 stipulated:

Article 2386. The fruits of the para-phernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.
If there is no community of gains, each party enjoys, as he chooses, that which comes to his hand; but the fruits and revenues which are existing at the dissolution of the marriage, belong to the owner of the things which produce them. [Repealed by Act 709 of 1980]

The issue posed is as follows: was this article unconstitutional (violative of equal protection clause of 14th Amendment) insofar as it permitted the wife but not the husband to unilaterally prevent the fruits of her paraphernal property from becoming community property?

“To withstand scrutiny under the Equal Protection Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Orr v. Orr, 440 U.S. 268, 269, 99 S.Ct. 1102, 1106, 59 L.Ed.2d 306 (1979). Scrutiny of gender based classifications is an intermediate test which takes a closer look than the “minimum rationality” test but falls short of the strict scrutiny given suspect classifications.

The intermediate test has both upheld and struck down statutes, unlike the “minimum rationality” test which invariably upholds the statute in question and the “strict scrutiny” test which usually strikes down the statute involved. Some gender based classifications which have been nullified include: a law which made the legal drinking age for males 21 and females 18, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); a law which made the age of majority for females 18 and males 21, Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); a law which preferred men as administrators of estates, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); a law which presumed the female spouse of an Air Force officer to be dependent and presumed the male spouse of an Air Force officer to be independent, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); a law which only provided alimony for wives, Orr v. Orr, supra; and the Louisiana “head and master” law which allowed a husband to unilaterally mortgage the family home without according the wife the same right, Kirchberg v. Feenstra, 450 U.S. 455, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981).

Some gender based classifications which have been upheld include: a criminal statute which punishes men and not women for statutory rape, Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981); a law precluding a father who has not legitimated a child from suing for the wrongful death of the child, Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979); a statute which allows women a longer period of time to make mandatory promotions, Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975); a statute which grants widows but not widowers a property tax exemption, Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); a law which requires men but not women to register for the draft, Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478.(1981); and a statute allowing women to eliminate low-earning years from calculation of Social Security retirement benefits, Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977).

In the case before us, the declaration of paraphernality is a means that is substantially related to the important state interest of allowing wives an opportunity to manage their own separate property on an equal basis with their husbands. While other means may have been better, our role is not to supplant the legislature’s judgment with our own. Strict tailoring of the means to the end is required in laws employing “suspect classifications” but not statutes utilizing gender based classifications.

Civil Code Article 2386 as amended by Act 286 of 1944 allowed the wife opportunity to manage her own separate property and the fruits of her separate property just as her husband was allowed to do. The classification of the fruits of the wife’s separate property as separate was a means whereby she was allowed management of fruits which would normally fall under her husband’s management as “head and master” of the community. Consequently, we do not declare a law which attempts to establish parity between a wife and her husband unconstitutional.

We find the cases of Kahn v. Shevin, supra, and Califano v. Webster, supra, particularly convincing. In both cases an inequity in treatment was remedied in part by a law favoring the class who had been subjected to disadvantage. In both cases the law was upheld even though it did not solve the whole problem and benefited some who had not suffered.

Therefore, we affirm the trial court judgment and assess all costs of this appeal to appellant.

      . "The double declaration requirement, 'well-established' in our law, makes it necessary that conveyances of immovable property, to the husband for a recited consideration during the existence of the community, contain recitations that the property is acquired (1) with his separate funds and (2) for his separate use and administration, as a prerequisite to his later proving that the property is not community, but separate. In the absence of the double declaration, property so acquired by the husband is conclusively presumed to be community.” Barnett v. Barnett, 339 So.2d 495, 496 (La.App. 2d Cir.1976), writ refused 341 So.2d 1127 (La.1977).

      . Act 709 of 1979, effective January 1, 1980, substantially revised Louisiana matrimonial regimes law. This act was passed upon recommendation of the Joint Legislative Subcommittee on Equal Management, its Advisory Committee, and the Louisiana State Law Institute.


author: HALL, Judge.

text:
    Floria Sercarz KAPLAN, Plaintiff-Appellee, v. Jack Harold KAPLAN, Defendant-Appellant.
    No. 16721-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Gamm, Greenberg & Kaplan by Irving M. Greenberg, Shreveport, for defendant-appellant.
    Sockrider, Bolin & Anglin by H.F. Sockri-der, Jr., Shreveport, for plaintiff-appellee.
    Before HALL and FRED W. JONES, Jr., JJ., and PRICE, J. Pro Tem.
   HALL, Judge.

This appeal presents a unique factual situation from which questions have arisen concerning not only the propriety of the trial court’s reduction in the amount of its original alimony award, but also the date from which a properly reduced alimony award should be due. In granting a divorce between the defendant-appellant, Jack Harold Kaplan, and the plaintiff-ap-pellee, Florida Sercarz Kaplan, the trial court originally set alimony pendente lite at $2,100 per month and permanent alimony at $1,700. Mr. Kaplan appealed this judgment, but subsequently filed a motion in the trial court for reduction of alimony. In April 1984, before a decision on Mr. Kap-lan’s appeal was rendered, the trial court ruled on the motion for reduction, and ordered Mr. Kaplan’s permanent alimony payment reduced from $1,700 per month to $1,279.96 per month and alimony pendente lite reduced from $2,100 per month to $1,575 per month. Mr. Kaplan’s appeal from that judgment is the appeal presently before this court.

The facts in this case are complicated by this court’s decision on Mr. Kaplan’s initial appeal — a decision handed down in June 1984 subsequent to the trial court’s judgment reducing alimony. This court’s now final decision, Kaplan v. Kaplan, 453 So.2d 1218 (La.App. 2d Cir.1984), writs denied 458 So.2d 484 (La.1984), hereinafter referred to as Kaplan I, affirmed the granting of the Kaplan’s divorce, and reduced the trial court’s original awards of $1,700 per month in permanent alimony and $2,100 per month in alimony pendente lite to $750 per month each.

In the present appeal, Mr. Kaplan is contesting the amount by which the trial court reduced his alimony payments. He requests a further reduction in payments, and requests retroactive application of the proposed reduction. Because the trial court erred in assessing the amount of payments due, a lower monthly payment is recognized as proper; retroactive application of the reduction to that period of time prior to the date upon which Kaplan I became final is denied.

The Issues Presented

The two issues presented on appeal are:

(1) Did the trial court properly reduce its original alimony award?
(2) From what date is the reduced alimony award effective?

The Reduction in Alimony

Since Mr. Kaplan’s divorce is now final, the question of the proper amount of alimony pendente lite is moot. Only the propriety of the trial court’s reduced permanent alimony award is before the court.

As previously stated, the trial court, without the benefit of this court’s Kaplan I opinion, reduced the permanent alimony payments from $1,700 per month to $1,279.96 per month. Shortly thereafter in Kaplan I, this court concluded that permanent alimony should be reduced from $1,700 per month to $750 per month. At the trial of the rule to reduce alimony, the trial court had more recent financial data available than was considered by this court in Kaplan I. Nevertheless, both courts’ calculations of Mr. Kaplan’s average monthly income were approximately the same. The trial court arrived at $3,839.89 as the average monthly income, while this court found an average income of approximately $4,000 per month. The trial court simply took one-third of $3,839.89 in calculating Mr. Kaplan’s permanent alimony payment to be $1,279.96 per month. This court, however, noted in Kaplan I that Mr. Kaplan owed approximately $175,000, and was obligated to pay over $3,300 per month for necessary expenses that did not include any sum for food and clothing for Mr. Kaplan and his then minor son, and did not include any sum to be paid on the principal of extensive bank notes owed by Mr. Kap-lan. This court found that the trial court’s original award was excessive since it failed to adequately consider Mr. Kaplan’s substantial community debts and fixed expenses. Similarly, in the instant case, the trial court’s reduction in permanent alimony was insufficient since the debts and expenses did not receive adequate consideration.

In the judgment now being appealed, the trial court found Mrs. Kaplan’s needs remained about the same while Mr. Kaplan’s income for 1983 was lower than his average over the preceding four-year period. However, Mr. Kaplan, when explaining the difference between his earnings in 1982 and 1983, admitted that he had spent the first part of 1983 preparing for trial of his case, and that prior to November 1983, he had been depressed and had not been working as well as usual. Mr. Kaplan’s explanation of his decrease in earnings indicates that the decrease in income was temporary, and that his overall financial situation has not changed significantly from his situation as analyzed in Kaplan I. Thus, this court holds that the $750 per month in permanent alimony payments ordered in our now final opinion in Kaplan I remains the proper amount due.

The Effective Date of the $750 Per Month Alimony Payments

In Kaplan I, this court stated:

“It is well settled that an appellate court judgment modifying an alimony award can have prospective effect only. Frederic v. Frederic, 302 So.2d 903 (La. 1974); Bruner v. Bruner, 373 So.2d 971 (La.App. 2d Cir.1979); Hamiter v. Hami-ter, 419 So.2d 517 (La.App. 2d Cir.1982).”

The second problem arising under the unique facts of this case is the date from which the $750 per month permanent alimony payments are due. Appellant takes the position that the rule of the Frederic, Bruner, and Hamiter line of cases is incorrect, and that the present decision reducing the amount fixed in the trial court’s modification judgment should be applied retrospectively to the date of that judgment. Appellee takes the position that this court’s reduction of payments in Kaplan I is essentially without any effect whatsoever since the trial court had already rendered a subsequent judgment modifying permanent alimony payments before this court’s decision reducing the original amount was rendered and became final. This view leads to the conclusion that the $1,279.96 per month ordered by the trial court is the amount in effect at present, and from this conclusion one may then argue that under the rationale of Frederic and Bruner, supra, the payments of $750 per month now recognized as proper constitute a further reduction that will not go into effect until this opinion becomes final. Frederic and Bruner arguably support such a result since both hold that no sus-pensive appeal lies from a judgment awarding alimony (LSA — C.C.P. Art. 3943), and that the effect of such a judgment continues during appeal until the appellate court judgment reversing or modifying the award becomes final.

The appellate decision in Kaplan I establishing alimony at $750 per month became final on October 26, 1983, and became effective on that date in lieu of the original alimony award by the trial court. Thus, the instant opinion’s recognition of $750 per month as the proper permanent alimony award should be viewed as a reaffirming of a previous award, while the trial court’s modifying judgment, rather than being viewed at the present time as a reduction of a previous award, should now be viewed as an unwarranted increase over the judgment prescribed in Kaplan I. Since both courts are in agreement to the extent that a comparison of Mr. Kaplan’s financial condition at the time of the trial court’s first award with his condition at the time of the trial court’s modification of the award calls for no increase in payments, it would be both illogical and inequitable to allow the $1,279.96 per month payments ordered by the trial court to continue beyond October 26, the date Kaplan I became final. To do so would be to totally negate any effect of the Kaplan I decision.

The present decision reducing the modified trial court award of $1,279.96 per month to $750 per month shall be effective retrospectively to October 26. This holding represents a narrow exception to the rule of Frederic and Bruner, limited to the peculiar facts of this case. However, to the extent that the present decision is not applied retrospectively to the date of either the original trial court judgment or the modifying trial court judgment, but is only applied prospectively from the date Kap-lan I became final, the present opinion denies retrospective recovery of previously paid alimony, and follows the rule of Frederic and Bruner.

In accordance with the reasons set forth above, the judgment of the trial court awarding $1,279.96 per month in permanent alimony is reduced to $750 per month permanent alimony from and after October 26, 1984. All costs of these proceedings are assessed to the plaintiff-appellee.


text:
    Bonnie SPEIGHTS, Plaintiff-Appellant, v. CALDWELL MEMORIAL HOSPITAL et al., Defendants-Appellees.
    No. 16722-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Gravel & Van Dyke by James S. Gravel, Alexandria, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by R.L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and PRICE, JJ.
   FRED W. JONES, Jr., Judge.

Bonnie Lynn Speights sued Caldwell Memorial Hospital and Dr. H.H. Winters, III, for alleged malpractice. The trial judge sustained an exception of prescription. Mrs. Speights appeals that judgment. We affirm for the following reasons.

In April of 1980, Mrs. Speights entered Caldwell Memorial Hospital for the purpose of having her Fallopian tubes tied to prevent conception. She alleges that after the operation Dr. Winters represented to her that her IUD (interuterine device) had been removed. Some time later she began experiencing increased discomfort during menstruation and pain during intercourse. Mrs. Speights testified that in February, March or April of 1981, she discovered a string in her uterus. She further testified that she knew that a string was attached to the IUD as a means of determining whether it was still in place. She told a friend about the string and her friend referred her to Dr. Coffman who removed the IUD in June of 1981. Suit was filed in June of 1982.

Prescription in a malpractice action is established by La.R.S. 9:5628 which provides:

§ 5628.

A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

Application of La.R.S. 9:5628 to the facts of this case requires that the suit be dismissed. The operation complained of occurred in April of 1980. Normally the action would prescribe in April of 1981. However, assuming for the sake of argument that Dr. Winters represented to Mrs. Speights that the IUD had been removed, she had one year from the date of discovery of the alleged omission to file her action. The jurisprudence is clear that this “discovery” does not require certain knowledge, but merely “sufficient information to incite her curiosity” as to the cause of her discomfort. See Bayonne v. Hartford Ins. Co., 353 So.2d 1051 (La.App. 2d Cir.1977). Mrs. Speights had sufficient information to incite her curiosity when she discovered the string in her uterus. She, in fact, followed up on that finding and had the IUD removed. The latest possible date of discovery according to her testimony was April of 1981. Therefore, suit should have been filed by April of 1982. Since suit was filed in June of 1982, the action had prescribed.

The judgment of the trial court is affirmed, with the cost of appeal assessed to appellant.


text:
    Gus Perry JONES, Plaintiff-Appellant, v. WAUSAU INSURANCE COMPANIES et al., Defendants-Appellees.
    No. 16725-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Law Offices of John S.C. Massey by John S.C. Massey, West Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Charles Smith, Monroe, for defendants-ap-pellees, Bearden Logging, Inc. and Employers Insurance of Wausau.
    Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

From a judgment rejecting his demands for worker’s compensation benefits, penalties and attorney fees, plaintiff appealed, contending the trial judge erred in failing to find the occurrence of a job-related accident and the resulting disability. For the reasons hereinafter explained, we affirm.

In the suit against his former employer, Bearden Logging, Inc., and its compensation insurance carrier, Gus Perry Jones contended that he had sustained two on-the-job injuries. The first allegedly occurred in September 1981 during a logging operation when a tree limb hit him on the head and left shoulder. The second, according to Jones, resulted from a slip and fall on his employer’s truck in June 1982. However, he has restricted his appeal solely to the “slip and fall” incident.

The record reflects that the only witness to the accident itself was the plaintiff. Apparently no other employee either saw the mishap occur or observed any sign of injury. Jones’ wife testified that he complained of pain that night. There was also testmony that he went to a physician with complaints of a back ailment the same week.

The testimony of an injured employee alone can establish a compensable accident by a preponderance of the evidence if supported by corroborating circumstances and the reliability of the testimony is not suspect. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Hand v. Reeves, 378 So.2d 1064 (La.App. 2d Cir. 1979).

In an excellent written opinion, the trial judge found substantial evidence which cast suspicion upon the reliability of plaintiff’s testimony. Some of the enumerated factors were: (1) The employer never even heard of the accident until after suit was filed; (2) testimony of two co-employees did not conform to plaintiff’s testimony; (3) plaintiff had several prior worker’s compensation claims; (4) there was evidence of a statement by plaintiff's wife that they had never received anything out of an injury on the job and “it was time that they did so”; (5) plaintiff complained of back pains prior to the alleged accident; and (6) there was no report to Dr. Wadlington (plaintiff’s initial treating physician) of an accident-related injury.

The record amply supports the trial court’s assessment of the unreliability of the claimant’s credibility. Consequently, the trial judge was correct in his conclusion that plaintiff failed to discharge his burden of proof by a preponderance of the evidence.

For these reasons, we affirm the judgment of the district court, at plaintiff-appellant’s cost.


author: MARVIN, Judge.

text:
    Wayne D. SHOWS, Plaintiff-Appellant, v. MOREHOUSE GENERAL HOSPITAL, Defendant-Appellee. Wayne D. SHOWS, Plaintiff-Appellee, v. MOREHOUSE PARISH HOSPITAL SERVICE DISTRICT & Aetna Life and Casualty Company, Defendant-Appellant.
    Nos. 16734-CA, 16737-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Writ Denied March 15, 1985.

      Brown, Wicker, & Amman by William D. Brown, Monroe, for plaintiff-appellant, Wayne D. Shows.
    McLeod, Swearingen, Yerlander & Dollar by David E. Yerlander, III, Monroe, for defendants Morehouse Gen. Hospital, ap-pellee, and Morehouse Parish Hospital Service Dist., appellant.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

These two appeals arise out of a dispute between a public hospital and its former director, Shows. Shows appeals a judgment rejecting his demands to enforce a provision of his employment contract that two years notice or two years full salary would be given him if the hospital fired him.

In the consolidated action, the hospital board appeals a judgment ordering the board to “execute the necessary and proper forms to authorize Aetna Life Insurance Company to make payments to plaintiff in accordance with ...” an annuity life insurance contract that was purchased in connection with the employment contract to provide Shows with retirement income. We affirm the judgment in each case.

THE EMPLOYMENT CONTRACT

; The Morehouse Police Jury created by ordinance an advisory commission or board of commissioners to operate the public hospital in 1957. The commission hired Shows as director of the hospital in 1964. A written employment contract between the commission and Shows was first executed in 1973. The contract, executed annually, initially provided that either the commission or Shows could cancel their agreement by giving a one-year notice to the other.

In 1976, the contract was changed to provide that Shows could cancel the employment agreement by giving six months notice and that the commission could cancel by giving Shows two-years notice or two-years pay. The last contract of this type became effective December 1, 1981.

In 1982 the police jury created a hospital service district under LRS 46:1051 et seq. A hospital board was named by the police jury under this law on December 17, 1982, and the prior commission apparently ceased to exercise any function with respect to the hospital. The dispute then arose between the board and Shows.

On April 5, 1983, the board voted to immediately fire Shows as hospital director. After apparently being advised by its counsel that the hospital perhaps could not legally operate without a director, the board, on April 12, 1983, rescinded its resolution to immediately fire Shows. The board, through its counsel, and Shows negotiated and apparently agreed that Shows would continue temporarily as director. On May 9, 1983, Shows informed the board, through its counsel, that he was withdrawing as of May 12 from the agreement to serve temporarily, and then brought the action on May 25 on the employment contract. The action to mandamus the board to sign the annuity papers with Aetna was filed later.

The trial court did not make express findings of fact, but held that the two-year “severance pay” provision was unenforceable because of the constitutional prohibition that public funds shall not be donated or given either for services not actually rendered or as extra compensation or as a “bonus” for services already rendered. LSA-Const. Art. 7, § 14(A). McElveen v. Callahan, 309 So.2d 379 (La.App. 3d Cir. 1975), writ denied; James v. Rapides Parish Police Jury, 113 So.2d 88 (La.App. 2d Cir.1959).

The trial court found that the payments that were made by the hospital to the Aet-na annuity contract were legally permitted under the policy of LSA-Const. Art. 7, § 14(B). This section allows public agencies to contribute and contract for retirement or deferred compensation plans.

We shall view the evidence most favorably toward supporting the respective judgment in each case, but shall not reach the constitutional issue on the employment contract dispute. Assuming, apparently as did the trial court, that the advisory commission (1957-1982) had some capacity to enter into a contract of employment with Shows, we find that contract was limited and must be restricted by legal principles other than the constitutional provision.

The 1957 ordinance gave the commission the power to represent the public interest; to advise the police jury concerning the hospital; to promulgate rules for the operation of the hospital; to modify or rescind any action of officers or employees of the hospital; and to appoint a director of the hospital who “shall be a full time employee of the hospital and shall receive a salary fixed by the commission ... [and] shall serve at the pleasure of the commission.” The ordinance tracks the “universally accepted” rule that the office of an employee of a public body, where the tenure is not otherwise fixed by law, is held at the pleasure of the authority or body making the appointment. Gamier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611 (1942); Potts v. Morehouse Parish School Board, 177 La. 1103, 150 So. 290 (1933). In the absence of a special law such as LRS 17:413 requiring contracts of teachers to be for the scholastic year, it is against public policy to permit public boards to contract away the right to remove employees at will by entering into contracts of employment for definite periods of time. See Hartwig Moss Ins. Agency v. Board of Com’rs., 206 La. 395, 19 So.2d 178 (1944).

If the contract be construed as one requiring either two years “reasonable notice” to Shows before termination or as one that guarantees a two-year term of employment, Shows does not have a cause of action for damages for wrongful termination because the ordinance authorizing the advisory commission to hire a director did not authorize a term of employment. See Poole v. La Salle Parish School Board, 183 So. 182 (La.App. 2d Cir.1938). Indeed, the ordinance expresses that the director shall serve at the pleasure of the commission. This phrase negates authority to contract for a term and means that the hiring body has absolute authority to remove or discharge the employee without cause at its pleasure. Gamier, supra, 8 So.2d, at p. 614. A contract for a term under such conditions is ultra vires and unenforceable. Hartwig Moss, supra, 19 So.2d, at p. 181.

THE ANNUITY CONTRACT

Contributions of public funds to pension and insurance programs for the benefit of public employees are constitutionally authorized. LSA-Const. Art. 7, § 14(B).

The commissioners first purchased the annuity in 1976 by obligating the hospital to purchase for $5,000 per year an annuity vested in Shows. This amount was increased in 1978 to $6,000 per year, in 1979 to $10,400 per year, in 1980 to $12,300 per year, and on December 1, 1981, to $17,-334.13 per year, payable $4,333.53 per quarter. The annuity contract shows the hospital to be the “owner” and Shows to be the “participant.” The employment contract, however, states that the funds used to purchase the annuity can be withdrawn by Shows and that he “has complete control of where and in what these funds are invested ... and ... has total ownership of said funds.”

The trial court’s conclusion that the purchase of the annuity by the hospital accomplished a deferred compensation plan for Shows as the hospital director is supported by the record. While the amount annually contributed became generous, we cannot say that the aggregate amount is unreasonable. Whether the degree of control given to Shows by the commission rendered the contributions to the plan immediately taxable under federal law is not for us to decide. The hospital’s contribution was made for services rendered and was intended to be compensation that was deferred to the time of Shows’ retirement. The record supports the trial court’s mandate that the commissioners execute the necessary and proper insurance forms that would allow Shows to exercise his “complete control” over the credits in the annuity.

DECREE

At the cost of the respective appellants, the judgment in each action is affirmed.


text:
    DeSOTO PARISH POLICE JURY, Plaintiff-Appellee, v. Don N. BELL d/b/a Bell General Contractors, Defendant-Appellant.
    No. 16738-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Mayer, Smith & Roberts by Ben Marshall, Jr., Shreveport, for defendant-appellant.
    James Lynn Davis, Dist. Atty., Many, David M. Cohn, Asst. Dist. Atty., Mansfield, for plaintiff-appellee.
    Before HALL and FRED W. JONES, Jr., JJ., and PRICE, J., Pro Tern.
   HALL, Judge.

Defendant-appellant, Don N. Bell, is appealing the judgment of the trial court finding him liable to plaintiff-appellee, De-Soto Parish Police Jury, in the amount of $3,000 for damages to a bridge which collapsed as defendant’s bulldozer was being driven across it. Because this case is covered by precomparative negligence law, and because the plaintiff was contributorily negligent, the judgment of the trial court is reversed.

The Factual Background

The case was tried on a stipulation of facts, documentary evidence, and the deposition of the bulldozer driver.

On Wednesday, March 12, 1980 at 4:00 p.m., the DeSoto Parish Police Jury held a regularly scheduled meeting at which an engineering report on the condition of certain parish bridges was discussed. The report, made by the consulting engineering firm of Demopulos & Ferguson and dated February 8, 1980, found three parish bridges to be in critical condition. One of these bridges, a four-span timber bridge across Dolet Bayou, would later be involved in the accident giving rise to the present litigation. The engineer’s report stated that the bridge was in “critical condition due to failed and decayed piles”, and recommended that the bridge be posted for light loads and be scheduled for immediate rehabilitation. The police jury was advised of these facts by letter dated February 18, 1980. No warnings were posted and no repairs were begun prior to the accident that occurred on Saturday, March 15, 1983.

On that Saturday, Adan Savaz, working in the course and scope of his employment for appellant, attempted to cross the bridge while driving a large bulldozer weighing approximately 32,000 pounds. When the full weight of the bulldozer was on the bridge, the bridge collapsed. Savaz stated in his deposition that he had never experienced any problems when crossing similar bridges while driving similar machines, but admitted that he had crossed the other bridges despite the fact that most were posted with load limit signs of 10 to 15 tons. The bridge in the present case had no load limit signs.

Contributory Negligence of the Police Jury

The single issue presented on appeal is whether the police jury was contributorily negligent. The issue is of particular importance since comparative negligence law was not operative in Louisiana prior to August 1, 1980, the effective date of Act 431 of 1979. This act changed the prior law by providing in part that a person’s contributory negligence would not defeat a claim for damages. Since the instant case arose prior to the effective date of the act, any negligence on the part of the police jury would act as a bar to that governmental body’s recovery of damages from appellant.

Before considering the appellee’s negligence, we note that the trial court was correct in finding the appellant negligent in attempting to drive the bulldozer across the bridge. Appellant’s action was clearly a cause in fact of the accident. Furthermore, the appellant owed a duty to use reasonable care in crossing the bridge. As the Louisiana Supreme Court stated in Department of Highways v. Fogleman, 210 La. 375, 27 So.2d 155 (1946):

“It is incumbent upon every citizen using the highways and public bridges to do so with reasonable care. The general rule that a traveler about to cross a public bridge may assume that it is strong enough for his purpose does not apply when he proposes to cross it with an ‘unusual load’.... One who proposes to transport an unusual or undue load over a public bridge, particularly on a secondary route, is under the duty to exercise care and caution. In the absence of such care, a person driving such vehicle assumes the risk of injury to himself and cargo in trying to pass over the bridge.” (citations omitted)

The risk of harm arising in the instant case was the chance of a bridge collapse; this risk obviously fell within the scope of the duty set out above. Appellant’s driver breached his duty by attempting to drive a 32,000 pound bulldozer over the small rural bridge when he knew that other such bridges were posted with load capacities of only 10 to 15 tons.

In Fogleman, supra, a truck driver was negligent in not getting out of his truck to examine a weatherworn 10-ton load limit sign on a bridge over a secondary road, and in not making further effort to ascertain the weight limit of the bridge on his return trip with a 20-ton load. Nevertheless, the Department of Highways was precluded from recovering damages for the bridge’s collapse because of the department’s negligence in failing to replace a missing 10-ton load capacity sign on one approach to the bridge, and in detouring general traffic across the bridge without warning that the detour was for light traffic only. The facts of the present case are similar in that while the bulldozer driver was negligent, the police jury failed to post the bridge with any load limit signs, and failed to warn drivers of the critical condition of the bridge.

The police jury has a duty to warn persons using the highways and bridges under its control of the presence of dangerous conditions. Craft v. Caldwell Parish Police Jury, 455 So.2d 1226 (La. App. 2d Cir.1984). Of course, the police jury must be shown to have actual or constructive knowledge of the danger at a time when sufficient opportunity exists either to eliminate the dangerous condition or to warn of its presence. Craft, supra.

The DeSoto Parish Police Jury had actual notice of the dangerous condition of the bridge substructure three or four weeks before the bridge collapsed in the accident. Although the time period may have been insufficient to eliminate the dangerous condition by repairing the bridge, the time period was sufficient to meet the inexpensively and easily performed duty of placing a warning on or near the bridge. The police jury breached its duty by failing to warn of the particular danger present despite sufficient time in which to do so, and the police jury’s duty encompassed the risk of harm encountered.

The failure to warn of the critical condition of the bridge by at least posting “light load” signs as recommended in the engineering report was a cause-in-fact of the accident. Had a proper and adequate warning of the danger been posted, the bulldozer driver in all likelihood would not have attempted to cross the bridge.

Appellee argues that the failure to warn was not a cause-in-fact of the accident because the bulldozer driver had on previous occasions crossed similar bridges posted with 10 to 15-ton load limit signs, and he would have ignored any warning signs that might have been posted in this instance. This supposition is highly speculative. Further, this bridge was in a decayed and critical condition and the mere posting of a 10 to 15-ton load limit sign would not have been an adequate warning of the dangerous condition of the bridge.

Because the police jury breached its duty to warn of the particular danger present here despite knowledge of the danger and sufficient time in which to do so, because the duty to warn encompassed the risk encountered, and because the breach of duty was a contributing cause-in-fact of the accident, the police jury was contributo-rily negligent and is barred from recovering damages from the appellant.

Although the police jury has raised the question of the application of the doctrine of “last clear chance” to the facts of this case, the doctrine does not apply. The plaintiff must have been in a position of peril of which he was unaware or from which he could not extricate himself before the doctrine is applicable. Here, the defendant was arguably in such a perilous position, but the police jury as plaintiff was not.

Fault of the police jury based on strict liability principles as the custodian of a defective thing is not argued and need not be considered.

In accordance with the reasons expressed above, the judgment of the trial court is reversed and plaintiffs demands are rejected. All costs of these proceedings are assessed to the plaintiff-appellee.

Reversed.


author: PRICE, Judge Pro Tempore.

text:
    Barry W. FOSTER, Plaintiff-Appellant, v. B.B. POWDRILL, et al., Defendant-Appellee.
    No. 16747-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.
    Sadye Kern Bernheim, Monroe, for plaintiff-appellant.
    Barham, Adkins & Tatum and R.W. Far-rar, Jr., Monroe, for defendant-appellee.

      Before HALL and FRED W. JONES, Jr., JJ., and PRICE, J. (Pro Tempore).
   PRICE, Judge Pro Tempore.

Plaintiff, Barry W. Foster, appeals the judgment of the trial court which sustained the peremptory exception of no cause of action of defendant, T.J. Adkins, and dismissed the suit against him in plaintiff’s action for false arrest and imprisonment. We affirm the judgment of the trial court for the following reasons.

In his petition, plaintiff alleged that on January 25, 1982, he received a speeding ticket in Union Parish, Louisiana. The ticket was issued by B.B. Powdrill, a trooper with the Louisiana State Police. Plaintiffs driver’s license was retained pending payment of the citation. The citation issued to plaintiff stated that he was to appear at the Third Judicial District Court in Union Parish on February 23,1982. On February 22, 1982, plaintiff went to pay his ticket in Union Parish. Plaintiff was informed by Annette Lee, an employee of the Union Parish Sheriff’s Office, that the arraignment date contained in the citation was incorrect and should have in fact been February 22, 1982. A search for the ticket was made at that time but no record of the ticket could be found. Payment on the ticket was accepted and a receipt was issued to plaintiff.

On April 5, 1982, plaintiff responded to a knock on the door at his home in West Monroe, Louisiana and was subsequently placed under arrest by an officer with the West Monroe Police Department. The arresting officer stated that he was acting pursuant to an arrest warrant issued in Lincoln Parish for plaintiff’s failure to appear for arraignment on a traffic citation. Plaintiff was then searched, handcuffed, and taken to West Monroe City Jail where he was photographed, fingerprinted, and booked. Plaintiff was placed in a holding cell for approximately two and one-half hours.

Acting upon plaintiffs protestations of innocence, the West Monroe Police Department contacted the Union Parish Sheriff’s Department and was informed that plaintiff had already paid the ticket. Further, it was found that there was an additional error in that the citation was sent improperly to Lincoln Parish rather than Union Parish. Plaintiff filed the instant suit on April 4, 1983, seeking damages for false arrest and false imprisonment. Plaintiff initially named the following persons as defendants:

A) B.B. Powdrill, individually and in her official capacity as a Louisiana state trooper;
B) The State of Louisiana through its political subdivision, the Department of Public Safety;
C) Annette Lee, individually and in her official capacity as an employee of the Union Parish Sheriff’s Department, and
D) Eugene Patterson, in his capacity as Sheriff of Union Parish.

In a supplemental and amending petition, T.J. Adkins, District Attorney for Union and Lincoln Parish, and an unknown employee of the district attorney were named by the plaintiff as defendants. Plaintiff alleged that because of the negligent acts of an unknown employee of the district attorney, the traffic ticket was retained in that office for several weeks with no one checking whether the ticket had been paid. This ultimately resulted in the issuance of an arrest warrant.

Defendant, Adkins, filed a peremptory exception of no cause of action alleging that the plaintiff’s allegations did not disclose that the district attorney or any of his employees participated in any manner in plaintiff’s false arrest or imprisonment. Further, that plaintiff did not allege malice on the part of the district attorney or any of his employees, and in order to state a cause of action, malice must be alleged and it must be alleged that the district attorney and his employees actually participated in the alleged false arrest and imprisonment.

The court sustained the exception of no cause of action, dismissing plaintiff’s suit against the district attorney. The court found that the district attorney had requested that a bench warrant issue for plaintiffs arrest which was a step in the prosecution of the plaintiff. However, the court construed plaintiffs petition as seeking damages for malicious prosecution, an essential element of which is malice. As plaintiff failed to allege malice in his petition, defendant Adkins’ exception was sustained.

On appeal, plaintiff essentially asserts the following assignments of error:

1) The trial court erred in finding that plaintiffs petition sought damages for malicious prosecution and that malice must be alleged against the district attorney and his employees when plaintiffs cause of action was based solely upon the ground of false arrest, where no malice requirement is necessary; and
2) The trial court erred in its determination that a district attorney may not be held liable when he or his employees directly and/or indirectly caused a false arrest through their negligence.

Plaintiff contends that the district attorney may be held liable for false arrest and imprisonment in the absence of allegations of malice as distinguished from malicious prosecution in which malice is an essential element.

Defendant contends that a district attorney is not liable in the performance of official duties in the absence of a showing of malice under the doctrine of judicial immunity.

A district attorney “... is a constitutional officer who serves in the judicial branch and exercises a portion of the sovereign power of the state within the district of his office.” Diaz v. Allstate Ins. Co., 483 So.2d 699 (La.1983) at p. 701. The office, duties, and powers of the district attorney are governed by the legislature and constitution and are not subject to local control. The office of the district attorney is an office of the state rather than of the local government. Diaz v. Allstate Ins. Co., supra.

As the district attorney acts in a judicial or quasi-judicial capacity, he enjoys essentially the same immunity from liability for damages that protects a judge. However, since this immunity is conferred on the district attorney solely by the virtue of the office he holds, the rule becomes different if the district attorney acts in a matter clearly outside the authority or jurisdiction of his office. As the district attorney is acting in another capacity, then the reason for his immunity, the integral relationship between his acts and the judicial process, ceases to exist. See 63A Am. Jur.2d Prosecuting Attorneys § 4 (1984). See also 27 C.J.S. District & Pros. Attys. § 16 (1959).

As noted in 63A Am.Jur.2d Public Officers and Employees § 358 (1984), it has been generally recognized that public officers would be greatly hampered, deterred and intimidated in the discharge of their duties if those who act improperly or exceed their authority were not protected to some reasonable degree by being relieved from private liability. The rationale for immunity is to promote fearless, vigorous, and effective administration of the policies of government. The threat of suit could deter competent people from taking office as well as presenting a drain of valuable time caused by defending such actions.

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the United States Supreme Court discussed prosecuto-rial immunity to suit under 42 U.S.C. § 1983. The court noted that the immunity of a prosecutor is based upon the same considerations that underlie the immunity of judges. These include the concern that harassment by unfounded litigation would somehow cause a deflection of the energy of the prosecutor from his public duties and the possibility that the prosecutor would shade his decisions instead of exercising the independence of judgment required by his public trust. The work of the prosecutor would be impeded and it would deter the desired objective of strict and fair law enforcement. The court concluded that these considerations mandated absolute prosecutorial immunity.

The question of whether a district attorney enjoys absolute immunity against civil law suits has not been ruled on by the Louisiana Supreme Court. However, it does appear that a district attorney is immune from civil liability in a suit for false arrest and imprisonment based upon negligence, absent allegations, and proof of malice. Appellate court opinions indicate that the district attorney may only be sued in actions for malicious prosecutions. See Crier v. City of New Orleans, 365 So.2d 35 (La.App. 4th Cir.1978) and citations therein. See also Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir.1976) and Hall v. City of New Orleans, 385 So.2d 1253 (La.App. 4th Cir.1980), writ denied 393 So.2d 739 (La.1980). The court in Crier v. City of New Orleans, supra, noted that there was no expression of our Supreme Court as a whole which would confer absolute immunity on a district attorney from suits for malicious prosecutions although Justice Tate subscribed to the theory of absolute prosecutorial immunity set forth in Imbler v. Pachtman, supra, in his concurrence to the denial of writs in Cerna v. Rhodes, supra. See Cerna v. Rhodes, 343 So.2d 1067 (La.1977).

In reviewing the trial court judgment on an exception of no cause of action, the appellate court must take the allegations of the plaintiff as true. Crier v. City of New Orleans, supra. In his petition, plaintiff does not make any allegations that the district attorney and the unknown employee acted with any malice in the issuance of the arrest warrant. Thus, the trial court did not err in sustaining defendant’s exception.

For these reasons, the judgment of the trial court in favor of defendant, T.J. Adkins, is affirmed at plaintiffs costs.

AFFIRMED.

      . As we understand plaintiff’s position in brief and at oral argument, he does not contend that the district attorney or his employee acted with malice, therefore we find it unnecessary to remand the case to allow plaintiff to amend his petition to state a cause of action.


text:
    LOUISIANA BANK OF OUACHITA PARISH, Plaintiff-Appellee, v. Evelyn D. WILSON, Defendant-Appellant.
    No. 16748-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Johnson & Johnson by Mary Sims Johnson, Monroe, for defendant-appellant.
    Brown, Wicker & Amman by R. Douglas Wood, Jr., Monroe, for plaintiff-appellee.
    Before MARVIN and SEXTON, JJ„ and PRICE, J. Pro Tern.
   MARVIN, Judge.

After her motion for new trial was denied, Ms. Wilson appeals a $1500 default judgment against her in this action that was brought by the bank on a continuing guaranty executed by Ms. Wilson. We affirm.

In the absence of a transcript of testimony or record evidence to the contrary, a default judgment is presumed to be correct and to be supported by sufficient evidence. CCP Arts. 1701-1703. Compare Landry v. Guillory, 344 So.2d 1138 (La.App.3d Cir. 1977); Allen v. Brandt, 438 So.2d 712 (La. App.2d Cir.1983).

Ms. Wilson contends she signed the continuing guaranty for the debts of Ms. Bessie Hoard and that the record shows that the guaranty was enforced against a debt of a corporation (Quality Employment Health Care Service, Inc.) for whom Ms. Hoard was a surety or mere endorser who made herself liable for the corporate debt by virtue of her endorsement. Ms. Wilson argues that because Ms. Hoard was not the debtor, under these circumstances, the continuing guaranty cannot be - enforced against her and the judgment should be reversed. We cannot agree.

The record made at the hearing on the motion for new trial establishes that three siblings, Ms. Wilson as secretary, Ms. Hoard as president, and Aaron Dawson as vice president, were the officers and apparent incorporators of the corporation mentioned and that the corporation sought to borrow $1500 for working capital from the bank on September 3, 1981. A corporate resolution (in printed form) was signed by Ms. Wilson and Ms. Hoard authorizing either of them to borrow money from the bank. On that same date the continuing guaranty in question was signed by Ms. Wilson and by Ms. Hoard, even though the debtor whose debts are guaranteed is Ms. Hoard and not the corporation. The guaranty, however, guarantees payment of “all debts and liability (whether direct, indirect, absolute, [or] contingent ...) which said Debtor [Ms. Hoard] may ... hereafter owe, or be liable to pay to said Bank ...” Brackets supplied.

Ms. Wilson does not dispute that Ms. Hoard, as the endorser of the note signed by the corporation to the bank, was liable in solido with the corporation for the debt. A judgment was rendered against Ms. Hoard and the corporation for the amount of the debt and apparently has become final.

The record before the motion for new trial was heard shows that the bank sued Ms. Wilson and introduced the judgment and the continuing guaranty signed by Ms. Wilson. We must presume that the evidence presented was sufficient to support the default judgment and that the relationship between Ms. Wilson, Ms. Hoard, and the corporation mentioned was shown when the default was confirmed.

By the express terms of the guaranty, Ms. Wilson obligated herself to pay $1500 toward all debts and liabilities owed the bank by Ms. Hoard whether those debts or liabilities were indirect or contingent.

Ms. Wilson would have us construe the continuing guaranty as ambiguous and as extending only to money loaned by the bank directly to Ms. Hoard. The guaranty, however, and as we have quoted, expressly extends to the indirect or contingent debts and liability of Ms. Hoard. CC Art. 3039. Ms. Wilson may not be liable directly for the debt of the corporation of which she is or was the secretary, but is liable for the indirect and contingent liability of Ms. Hoard to the bank.

Under these circumstances, the trial court did not err in rendering the default judgment or in denying a new trial.

Judgment is AFFIRMED at appellant’s cost.


author: NORRIS, Judge.

text:
    Nora Velma Chapman LEE, et al., Plaintiff-Appellant, v. The SUCCESSION OF Arthur CHAPMAN and Dover Chapman, Defendants-Appellees.
    No. 16749-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 23, 1985.

      Frank E. Brown, Jr., Shreveport, for plaintiff-appellant, Nora Velma Chapman Lee, et al.
    Cary & Cary by Curtis W. Cary, Shreveport, for defendant-appellee, Evelyn Chapman White.
    Whitehead & McCoy by C.R. Whitehead, Jr., Natchitoches, for defendant-appellee, Ganeswell McClinton.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Plaintiffs Nora C. Lee and Hazel C. Washington, alleging they were the acknowledged natural children of decedent Arthur Chapman, brought this suit demanding recognition as his acknowledged illegitimate children and forced heirs. They also named as defendant the succession of Dover Chapman, Arthur’s wife, who survived Arthur but is now deceased. The trial court sustained defendants’ peremptory exceptions of prescription and dismissed the suit. Plaintiffs appeal. For the reasons expressed, we affirm.

The facts are simple. Nora was born in 1933, Hazel in 1936, of an alleged relationship between Arthur Chapman and Elvira Hays, during the time that Arthur was married to his first wife. The daughter of that marriage, Evelyn C. White, is Arthur’s only legitimate descendent. Arthur and his first wife were divorced in 1938 and Arthur later married Dover Chapman. Arthur died on July 11, 1983. Dover survived him by five days. Plaintiffs filed the instant suit on March 1, 1984, claiming that Arthur’s and Dover’s heirs were in possession of the entire estate.

Although plaintiffs did not call their suit a proceeding to establish filiation, they must either make such a showing, or prove acknowledgment, in order to. succeed as heirs. Children who do not enjoy legitimate filiation, or who have not been filiated by the initiative of the parent by legitimation or by acknowledgment under article 203 must institute a proceeding and prove filiation in accordance with article 209 of the Louisiana Civil Code. Article 209 provides:

A. A child not entitled to legitimate fili-ation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
B. A child not entitled to legitimate fili-ation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
D. The right to bring this proceeding is heritable.

The prescriptive period of subsection C is crucial to appellants’ case. A suit for filiation, even if brought within one year of the parent’s death, will not be timely if the claimant has already celebrated his nineteenth birthday. This is clearly the case here. Appellants’ argument in brief that article 209 is disjunctive and that compliance with one alternative satisfies the article, completely misreads the article and is untenable. See In the matter of Thomas, 450 So.2d 1048 (La.App. 1st Cir. 1984), writ denied 457 So.2d 1192 (La.1984).

Article 209 was reenacted with a one year “grace period” during which persons who would be adversely affected by the prescriptive period could bring suit. LSA-Acts 1980, No. 549, § 4. This grace period was extended for another year by LSA-Acts 1981, No. 720, § 2. See also Harlaux v. Harlaux, 426 So.2d 602 (La.1983). This court has upheld a filiation suit which was prescribed under the terms of article 209 yet timely under a grace period. Reed v. Missouri Pacific R., 446 So.2d 831 (La. App. 2d Cir.1984). In the instant case, however, suit was filed after the last grace period expired on September 11, 1982. Thus the suit was not timely and the exception was properly maintained.

Finally, appellants contend that to apply article 209 as written would deny them due process and impair the obligation of contracts. This argument is completely unbriefed, but we understand it to mean that article 209 arbitrarily prescribes a right which did not exist in Louisiana until the decision in Succ. of Brown, 388 So.2d 1151 (La.1980). Due process mandates a standard of reasonableness similar to the equal protection standard of “substantial relation” applied in illegitimacy cases by the United States Supreme Court. See Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). The Supreme Court’s analysis of prescriptive periods for filiation suits was summarized in Mills v. Habluet-zel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), as ^follows:

The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two
The equal protection analysis in this case, therefore, focuses on two related requirements. First, the period for obtaining support granted by Texas to illegitimate children must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims. [456 U.S. at 99, 100, 102 S.Ct. at 1554, 1555] witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.

In Mills, the court invalidated a Texas statute that placed a one year limit on filiation suits. In the later case of Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), the court invalidated a Tennessee statute that placed a two year limit on such suits. We feel that Louisiana’s nineteen-or-one scheme is sufficiently long to satisfy the needs of due process or equal protection.

We note the record lodged by appellants contains no competent evidence of acknowledgment under LSA-C.C. art. 203, although they styled themselves the “acknowledged children” of decedent in their petition. The only documents in the record are Nora Chatman Hays’s birth certificate, naming Arthur “Chatman” as father, and assorted school records pertaining to both appellants. This does not meet the requirements of article 203. See In re Wildeboer, 406 So.2d 687 (La.App. 2d Cir. 1981); LSA-C.C. art. 209, comments (a) and (b). Although an article 203 acknowledgment and a successful action to prove filiation under article 209 would produce the same results for appellants, the article 203 acknowledgment is not squarely before us. We therefore express no opinion on whether appellants’ right to prove an acknowledgment under article 203 has prescribed. We limit our holding to the prescription of appellants’ action to establish filiation under article 209.

Although ordinarily the defendant who alleges prescription has the burden to prove it, Langlinais v. Guillotte, 407 So.2d 1215 (La.1981), if plaintiff’s petition plainly shows that prescription has run and plaintiff claims it has not run, then the burden shifts to plaintiff to prove interruption, suspension or nonapplicability. See Bennett v. General Motors Corp., 420 So.2d 531 (La.App. 2d Cir.1982). Here it is obvious that prescription has run on appellants’ fili-ation claim under article 209. There is nothing in the record to prove interruption, suspension or nonapplicability.

For these reasons, we conclude the trial court correctly sustained the exception of prescription to the article 209 filiation suit. The judgment of dismissal is affirmed.

AFFIRMED.

      . As we will discuss later in this opinion, the petition does not assert, nor does the record prove, any act of formal acknowledgment by the alleged father, so filiation is the only other alternative.

      . Subsection C was amended again in 1984 to provide for cumulation of filiation and wrongful death actions. LSA-Acts 1984, No. 810. The amendment obviously has no effect on this case.

      . LSA-C.C. Art. 203 provides: