author: L. JULIAN SAMUEL, Judge Pro Tem-pore.

text:
    STATE of Louisiana v. Joseph HALL.
    No. KA-1800.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 9, 1984.

      Birch P. McDonough, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Before GARRISON and WARD, JJ., and L. JULIAN SAMUEL, J. Pro Tempore.
   L. JULIAN SAMUEL, Judge Pro Tem-pore.

Joseph Hall was charged by bill of information with possession of marijuana, a violation of La. R.S. 40:966. He pled not guilty. Following a judge trial, defendant was found guilty as charged and sentenced to serve six months in parish prison. The jail sentence was suspended, and defendant was placed on active probation for two years, conditioned upon his paying a fine of $300.00, plus costs. Defendant appealed his conviction and sentence to the Appellate Court of the Criminal District Court for the Parish of Orleans. On November 8, 1983, that court affirmed defendant’s conviction and sentence. Defendant now “appeals” his conviction and sentence to this court.

The Louisiana Courts of Appeal have appellate jurisdiction over criminal cases tria-ble by a jury. La. Const. Art. V § 10(A); La.C.Cr.P. art. 912.1(B). A criminal case is triable by a jury when the punishment which may be imposed is a fine in excess of five hundred dollars or imprisonment for more than six months La.C.Cr.P. art. 779.

In the instant case, the maximum penalty which could have been imposed was a fine of not more than five hundred dollars and imprisonment for not more than six months. La.R.S. 40:966(D). Therefore, the defendant did not have the right to a trial by jury. As a result, he does not have a right of appeal. His proper remedy is by application for a writ of review La.C.Cr. P. art. 912.1(C); Rule 4, Uniform Rules-Courts of Appeal.

Although defendant does not have a right of appeal, under the rule of State v. Banks, 444 So.2d 1243 (La.1984), we will treat his timely “appeal” as an application for a writ of review. State v. Benoit, 446 So.2d 921 (La.App. 1st Cir.1984).

In a single specification of error, defendant contends the trial judge erred in denying his motion for a new trial based on newly discovered evidence.

The events out of which defendant’s conviction arose commenced on October 14, 1982, when a confidential informant contacted Officer Donald Harris and informed him that a tall, thin Negro male wearing blue jeans, a black shirt and black shoes was selling marijuana cigarettes from a cigarette pack stored on top of a utility meter outside Harry’s Bar at the intersection of Rampart and Felicity Streets. Officer Harris and his partner, Officer Melder, proceeded to that location. As they approached, Officer Harris observed an individual matching the informant’s description conversing with a group of males. When this individual (later identified as Hall) saw the unmarked police ear approach, he whispered to the other individuals, and the group quickly dispersed. The officers then observed Hall walk over to a utility meter and place an object on top of the meter. Officer Melder detained Hall for the purposes of investigation while Officer Harris proceeded directly to the utility meter. From the top of this meter, Officer Harris retrieved a Salem cigarette pack containing twelve marijuana cigarettes. Hall was informed of his rights and placed under arrest.

At trial, defendant presented four witnesses who testified that on the evening in question, Hall had been drinking in Harry’s Bar and had exited the bar only to make a phone call and to assist a woman in obtaining a taxi. Each witness testified that Hall did not meet with other persons while outside Harry’s Bar and that they were 'not aware of any activity resembling a drug transaction. However, two witnesses, Gladys Reilly and David Joseph, recanted their testimony and admitted on cross-examination that because they were seated inside the bar, they could not see Hall during the entire period he was outside using the phone. They also admitted they did not know if Hall was in the presence of other persons while outside the bar and that they could not see the utility meter from where they were seated. A third witness, Roy Lee Wells testified he observed Hall standing on the corner in front of Harry’s Bar when the police arrived. He did not see Hall in the presence of other persons, not did he see him use the telephone. The fourth witness, Doris Watson, stated only that she received a phone call from the defendant on the night of his arrest. She was not present at the bar, nor did she observe any of the activities of that evening.

The defendant took the stand and testified in his own defense. He denied possessing marijuana and explained that he left the bar only to use the telephone and to assist a woman in obtaining a taxi. Hall testified that there were other men standing outside the bar, but that he did not speak to any of them.

At the hearing on the new trial motion, defendant presented two additional witnesses, Lionel Lashley and Anthony Wayne Thomas. Lashley testified he observed the defendant from the porch of an apartment above Harry’s Bar. He stated that he watched as defendant exited the bar, used the telephone, and then hailed a taxi. He testified that the defendant did not have any contact with other persons outside the bar.

The second witness, Anthony Wayne Thomas, testified that on the night in question he had been watching the street corner from his apartment window. He stated that he saw the defendant exit the bar and use the telephone, but admitted on cross-examination that he had turned away from the window just before the police arrived. Thomas also testified that some time prior to the arrival of the police, he observed an unidentified male place an object on top of the utility meter (where the marijuana was subsequently discovered).

La.C.Cr.P. art. 851 provides the standard of review for determining whether a trial judge has erred in denying a motion for a new trial. That article provides, in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

La.C.Cr.P. art. 851 contains four generally recognized requisities for a new trial motion based on newly discovered evidence: (1) the evidence must have been discovered since the trial; (2) failure to learn of the evidence at the time of trial must not be due to defendant’s lack of diligence; (3) it must be material to the issues at the trial; and (4) it must be of such a nature that it would probably produce an acquittal in the event of retrial. State v. Prudholm, 446 So;2d 729 (La.1984); State v. Talbot, 408 So.2d 861 (La.1981) (on rehearing).

The trial judge’s application of these precepts to newly discovered evidence is entitled to great weight, and his denial of a new trial motion will not be disturbed on appeal absent a clear abuse of that discretion State v. Prudholm, 446 So.2d 729 (La.1984); State v. Clayton, 427 So.2d 827 (La.1982) (on rehearing); State v. Talbot, 408 So.2d 861 (La.1981) (on rehearing). Applying these principles to the facts of the present case, we are satisfied the trial judge did not abuse his discretion in denying the motion for a new trial. A review of the record shows that much of the evidence presented at the new trial hearing was not new. The testimony of Lionel Lashley was repetitive of defense testimony presented at trial. No additional facts were established. Cumulative evidence as to an issue fairly disclosed and decided at trial ordinarily will not provide a basis for a new trial on the grounds of newly discovered evidence. State v. Lavene, 343 So.2d 185 (La. 1977).

While the testimony of Anthony Wayne Thomas did contain some newly discovered evidence material to Hall’s defense, we cannot say that it would “probably” have produced an acquittal in the event of retrial. To the contrary, here we can be certain it would not have changed the judgment.

The trial judge heard the testimony at trial as well as the testimony at the hearing on the new trial motion. As a result, he could and did evaluate the reliability of the additional testimony and its impact on his judgment. During the new trial hearing, Thomas (an admitted friend of the defendant) contradicted himself on several important aspects of his own testimony (e.g. how long he was in his apartment window; how many men he observed near the utility meter). The trial judge has the discretion to deny a new trial when it is sought on the grounds of newly discovered evidence which is suspicious or incredible. State v. Lee, 340 So.2d 180 (La.1976). Under the circumstances here, the trial judge must have concluded that the additional testimony would not have changed his judgment. If he had concluded otherwise, he would have granted a new trial. We note that what is involved here are only the trial judge’s conclusions as to credibility.

Accordingly, as we find no merit to defendant’s contention that the trial court erred in denying his motion for a new trial, the application is denied.

APPEAL DISMISSED, WRIT DENIED.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    Huey Allen FERGUSON, Thomas Huey Ferguson & Mrs. Thomas Huey Ferguson, Plaintiffs-Appellants, v. Don M. BURKETT, Defendant-Appellee.
    No. 83-810.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Gordon, Bailey & Associates, Jack M. Bailey, and Walker, Feazel'& Tooke, Barry G. Feazel, Shreveport, for plaintiffs-appellants.
    Edward Chevallier, Many, Dewey E. Bur-chett, Jr. of Thomas & Burchett, Bossier City, for defendant-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOUCET, Judge.

Plaintiffs, Huey Allen Ferguson and his parents Mr. & Mrs. Thomas Huey Ferguson, brought this action against an attorney, defendant Don M. Burkett, who represented Huey after he was involved in an automobile accident resulting in death to another driver. Huey was subsequently charged with negligent homicide. The Fer-gusons contend the condition of the highway contributed to the accident. Mr. Burk-ett acted as counsel for the Fergusons up until the date on which Huey was scheduled for a hearing whereupon Mr. Burkett allegedly informed plaintiffs he wished to be relieved of representation responsibility and suggested Huey plead guilty to the charge. Pursuant to counsel’s advice, Huey pled guilty and was sentenced to one year imprisonment.

Thereafter, plaintiffs aver, Mr. Burkett turned his attention to representation of the surviving widow and children of the victim of the accident. The plaintiffs responded to Burkett’s change of allegiance by filing suit against him seeking damages claimed to have arisen from the attorney’s failure to pursue a cause of action against the State as custodian of highways, since prescribed, and, additionally, damages were sought by the parents for loss of consortium of their son.

Plaintiffs’ allegations against defendant are summarized in their petition as follows:

“A.' Failing to preserve evidence for the defense of his client against possible criminal charges and/or the prosecution of his civil action;
B. Failing to give his individual allegiance to his client after having been retained by him and after having received his confidence;
C. Permitting the disclosure of and the wrongful use of confidential information conveyed to him by his client in consideration of the privileged attorney-client relationship;
D. In acting for both his client, HUEY ALLEN FERGUSON, and for another whose interest was adverse to or conflicting with that of HUEY ALLEN FERGUSON in the same matter;
E. Failing to meet the standards of professional expertise as required by the circumstances of his legal representation of HUEY ALLEN FERGUSON;
F. Failing to properly apprise his client to his rights of a civil action;
G. Failing to have the best interest of his client, HUEY ALLEN FERGUSON, in mind when advising him to plead guilty to a charge of negligent homicide;
H. Failing to preserve the rights of his client to a civil action by interrupting prescription of that right;
I. Failing to advise his client of his probable defenses to a negligent homicide charge.
J. Failing to exercise his duty of reasonable care, ordinary skill, and knowledge in the conduct of his client’s affairs.”

Your petitioners allege that as a result of the fault of the petitioners, Mr. and Mrs. Thomas Huey Ferguson, itemized their damages as follows:

“A. Loss of Love $10,000.00
B. Loss of companionship $10,000.00
C. Loss of affection $10,000.00
D. Loss of society $10,000.00
E. Loss of comfort $10,000.00
F. Loss of solace $10,000.00
G. Loss of services $10,000.00
Total Damages $70,000.00”

Appellants made no claim for damages directly resulting from breach of contract. Instead, they made only tort claims for loss of consortium.

The defendant responded with an Exception of No Cause and No Right of Action vis-a-vis the parents claim. The trial court found the parents had no legally recognizable claim for loss of consortium of their incarcerated, major son and the exceptions were sustained. The parents now appeal.

Appellants assign the following specifications of error:

1. The trial court made a manifest error in failing to recognize the right of plaintiffs, THOMAS HUEY FERGUSON and MRS. THOMAS HUEY FERGUSON, to a cause of action under Article 2315 for loss of consortium.
2. The trial court made a manifest error in deciding that because the substance of Act 202 of the 1982 Legislature was' added to Article 2315 in a separate paragraph, it provided a “new” right to recovery.
3. The trial court made a manifest error in deciding to refuse to allow plaintiffs/ appellants’ claim to be heard on the grounds that to do so might cause other claims to be fraudulently brought.
4. The trial court erred in failing to make retroactive application of Act 202 of the 1982 Louisiana Legislature on the grounds that the legislature did not specifically provide for retroactive application.
5. The trial court erred in placing the rights of a “private-citizen tort offender” above the rights of the victim of the tort.

The trial judge addressed all of the issues raised by appellants in his thorough opinion on the exception; which we incorporate herein below as our own:

“Defendant herein, Don M. Burkett, has filed Exceptions herein, contending that the petition herein disclosed no cause of action on the part of plaintiff, Thomas Huey Ferguson and Mrs. Thomas Huey Ferguson, parents of their co-plaintiff, Huey Allen Ferguson; and, that said Thomas Huey Ferguson and wife have no right of action in the present cause against defendant.

“The basis of all the plaintiffs’ claims herein is the alleged legal malpractice of the defendant in his representation of plaintiff, Huey Allen Ferguson, in connection with a criminal, negligent homicide proceedings; and, in the undertaking by the defendant to also represent certain survivors of the victim of the alleged negligent homicide in a subsequent civil proceeding against Huey Allen Ferguson for damages. Plaintiff, Huey Allen Ferguson, allegedly on the advice of the defendant, pled guilty to negligent homicide and was subsequently given a suspended sentence and placed on supervised probation for five (5) years, with a special condition of probation that he serve one year in the Sabine Parish Jail, commencing March 15, 1982. The petition herein does not allege the status or outcome of the civil suit against Huey Allen Ferguson and there is nothing in the record about that suit, except plaintiffs’ allegation in their petition that the suit was filed and served upon plaintiff, Huey Allen Ferguson.

“The damages claimed by Thomas Huey Ferguson and wife are set forth in Paragraph XXXV. of the Petition herein. In essence, they claim damages in the total amount of Seventy Thousand and 00/100 ($70,000.00) Dollars for loss of consortium with their son, due to the injuries and damages allegedly suffered by their son and co-plaintiff as an alleged result of the alleged legal malpractice of defendant. They claim Ten Thousand and 00/100 ($10,-000.00) Dollars each for loss of love, companionship, affection, society, comfort, solace, and, services.

“In response to defendant’s contentions that the said plaintiffs have no cause and no right of action for the damages they claim, plaintiffs’ counsel contend that although Mr. and Mrs. Thomas Huey Ferguson had no cause or right of action for loss of consortium damages at the time the alleged legal malpractice occurred, they were granted such a cause of action, retroactively, by the 1982 legislative amendment to Article 2315 of the Louisiana Civil Code of 1870, which amendment became effective on September 10, 1982_ Defendant’s counsel, however, takes the position that, even after the said amendment to Article 2315 of the Civil Code, there is no cause of action for loss of consortium in Louisiana, except in wrongful death cases....

“The relevant parts of the amended Article 2315 of the Civil Code are as follows:

‘Art. 2315: Every act whatever of man
that causes damages to another obliges
him by whose fault it happened to repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of:
(1) ...; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or died surviving; and (3) .... The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.” (See Article 2315, Louisiana Civil Code of 1870, West’s LSA Civil Code, Vol. 8A, 1983 Pocket Part, Page 90/

“Prior to the 1982 amendment, Article 2315 did not contain the present second paragraph of the article, dealing with damages for loss of consortium. (See Article 2315, Louisiana Civil Code of 1870, West’s LSA Civil Code, Vol. 8A, Page 101.).

“The jurisprudence prior to the 1982 amendment of Article 2315 of the Civil Code allowed recovery of consortium damages under that article only in an action for the wrongful death of a tort victim. (See Bourque v. American Mutual Liability Insurance, Co., 345 So. 2d 237, La. 3rd Cir.Ct. of App.1977; and, Cases cited with approval therein.). The new provision for consortium damages in Article 2315 does not state that recovery of such damages is restricted to wrongful death cases. It does define the relationship the claimants of consortium damages must have to the tort victim by providing that those persons who could have recovered for the tort victim’s wrongful death, had he died, have the right to recover consortium damages. (See Article 2315, as amended in 1982, cited supra.). However, the consortium provision is set forth in a separate paragraph from the wrongful death provisions of the article. Therefore, the consortium provision, added by the 1982 amendment to the article, creates, defines, and regulates, in my view, a new right of recovery for certain relations of a tort victim who does not die from his injuries, and does riot, as defendant’s counsel contends, merely codify the pre-amendment jurisprudence allowing recovery of consortium damages under Article 2315.

“Plaintiff’s counsel base their contention that the 1982 amendment to Article 2315 of the Civil Code should be given retroactive application in this case on their classification of the amendment as “interpretive”, “curative”; and, “procedural” law. The amendment is interpretive, they contend, since, historically, Article 2315 contained no definition or interpretation of the word “damages” as used therein and the early jurisprudence incorrectly interpreted damages in Article 2315 as excluding consortium type damages. However, I have reviewed the landmark ease denying a claim for loss of consortium and find that the majority of the court in that case established, in my judgment, a substantive rule of law. Moreover the majority opinion in that case did not engage in any interpretation of the word “damages” in Article 2315, but rather they were concerned with certain policy considerations, such as their concern that allowing consortium damages would encourage vindictive and penal damage awards and the likelihood that a defendant’s liability would be greater or less in proportion to the size of the circle of friends of the tort victim whose friends have been offended by the victim’s injuries. (See Black v. Carrolton Railroad Co., 10 La.Ann. 33, 1855.). Similar policy considerations are stated in Bourque v. American Mutual Liability Insurance Co., 345 So.2d 237, La. 3rd Cir.Ct. of App., 1977; and, in the cases cited with approval therein. Moreover, the previous amendment to Article 2315 allowing the major children of their decedent mother to recover damages for her wrongful death was found to be a substantive law change and, therefore, was not applied retrospectively in Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275, La. 3rd Cir. Ct. of App., 1961. This amendment to Article 2315 creates, defines, and regulates rights to the same extent, in my view, as the Article 2315 amendment dealt with in that case did. Similarly, restrictions on the rights granted in Article 2315 by the workmen’s compensation statutes has been recognized as substantive law changes. (See Bostick v. International Minerals & Chemical Corp., 360 So.2d 898, La. 2d Cir.Ct. of App., 1978; Cases cited therein; and, Article 8, Louisiana Civil Code of 1870.).

“A legislative act may specifically provide for retroactive application and thus be an exception to the general rule that a statute cannot have retrospective application. (See Bostick v. International Minerals and Chemical Corp., cited supra.). However, the amending act herein makes no provision for its retroactive application.

“The court in the Bostick Case, cited supra, found that a legislative act can be curative and remedial, yet be a substantive law. Thus, even if the legislative amendment herein be curative or remedial in the sense that a bad public policy (denial of rights to consortium damages for injuries to a living tort victim) has been eliminated or changed it is no less a substantive law, since it does add to the rights and causes of actions granted by Article 2315.

“In Fullilove v. U.S. Casulaty (sic) Company of New York, 129 So.2d 816, La.2d Cir.Ct. of App., 1961, cited by counsel for plaintiffs, the court was dealing with a constitutional amendment, waiving the sovereign immunity of this state. As stated therein, a constitutional amendment, whether substantive or procedural, is almost always applied retroactively. A legislative act, however, is not, as a general rule, afforded such treatment. Furthermore, the court in that case noted that the privileges and immunities of the state, not a private citizen, were being eliminated by the constitutional amendment at issue in that case. Here, however, this legislative amendment will expose private-citizen tort offenders to potentially greater financial burdens. A citizen’s private rights enjoy greater protection in our constitutions than do the rights of a state. (See Fullilove Case, cited supra.).

“The 1982 legislative amendment to Article 2315 having been found to be substantive changes in the law and not susceptible of retrospective application, I conclude that the plaintiffs, Thomas Huey Ferguson and Mrs. Thomas Huey Ferguson have neither a cause nor a right of action for the consortium damages they seek herein, since the effective date of the legislative amendment which they rely on was subsequent to the acts or negligence of defendant complained of herein; and, they have not been shown to be otherwise entitled to such relief herein. Consequently, the exceptions of no cause and no right of action herein should be sustained, at the cost of plaintiffs, Thomas Huey Ferguson and Mrs. Thomas Huey Ferguson.

it * * * * )>

See also: Kelly v. U.S. Fidelity & Guaranty Co., 353 So.2d 349 (La.App. 1st Cir. 1977), writ granted 354 So.2d 1383 (La.1978), appeal dismissed 357 So.2d 1144 (La.1978); Cruz v. Hendy Intern. Co., 638 F.2d 719 (5th Cir.C.A., La.1981); Jumonville v. Frank’s Petroleum, Inc., 422 So.2d 1261 (La.App. 1st Cir.1982); Cabone v. Melba Ice Cream Co., Inc., 423 So.2d 739 (La.App. 4th Cir.1982). Prior to recent amendment, La.C.C. art. 2315 was invariably construed as barring recovery by a parent for his own mental anguish and anxiety resulting from a tort committed against his child. Mahaffey v. Official Detective Stories, Inc., 210 F.Supp. 251 (D.C.La.1962); Brauninger v. Ducote, 381 So.2d 1246 (La.App. 4th Cir.1979); Gibbons v. Orleans Parish School Board, 391 So.2d 976 (La. App. 4th Cir.1980).

We concur with the trial judge that the amendments to La.C.C. art. 2315 are not retroactive, therefore we are constrained to follow the established jurisprudence regarding consortium claims. Furthermore, the appellants have cited no authority for such recovery by parents for harm done to their child emancipated by virtue of age.

For the reasons set forth hereinabove, the judgment is affirmed at appellant’s cost.

AFFIRMED.


text:
    INDEPENDENT FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. K. Michael KLINE, Defendant-Appellee.
    No. 83-843.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Woodley, Barnett, Cox, Williams, Fenet & Palmer, Clayton Davis, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, James R. Morris, Lake Charles, for defendant-appel-lee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOUCET, Judge.

High winds caused a carport to collapse whereupon the insurer-plaintiff paid $10,-138.27 pursuant to a homeowners policy, and secured a subrogation to all rights that the insured may have had against any third persons for the loss. Plaintiff brought suit against the builder of the carport alleging faulty workmanship caused the loss whereupon defendant excepted to plaintiff’s right to bring the action on the basis that loss caused by faulty workmanship was not covered under the policy.

The trial court reasoned that legal subro-gation had not taken place because plaintiff was under no obligation to pay its insured’s claim. Furthermore, the trial court concluded that conventional subrogation did not take place because no “advantage would accrue to defendant.”

Defendant’s exception of no right of action was maintained and plaintiff’s suit was ordered dismissed, without prejudice.

Plaintiff appeals.

The issues presented on appeal are:

1. Whether or not a conventional subro-gation, executed pursuant to Civil Code Article 2160, must, to be effective, be on behalf of or to the advantage of the debtor.
2. Whether or not an insurer is legally subrogated to the rights of its insured upon payment of a claim, arguably not covered under the policy.
3. Whether or not the defendant has standing to raise the plaintiff’s alleged lack of a right of action.

Whether the loss was in fact occasioned by defendant’s workmanship is, of course, irrelevant to our resolution of the above issues.

In Budd Construction Co., Inc. v. City of Alexandria, 401 So.2d 1070 (La.App. 3rd Cir.1981), we set forth the requirements that one must meet to prevail on an exception of no right of action, noting that Article 681 of the Code of Civil Procedure provides that an action can only be brought by one with a “real and actual interest.” The party asserting the exception has but two objections which can be made: lack of interest or lack of capacity. Want of interest raised by exception of no right of action relates primarily to whether appellant falls as a matter of law within the general class in whose favor law grants a cause of action sought to be asserted. Bielkiewicz v. Rudisell, 201 So.2d 136 (La.App. 3rd Cir.1967). For reasons which follow, we find neither objection has been proven by the defendant.

The trial court did not uphold the conventional subrogation due to apparent conflicts with Civil Code Articles 2134 and 2137. However, those articles do not apply to conventional subrogations, rather, they apply to legal subrogations.

Conventional subrogation is provided for in Civil Code Article 2160 which states as follows:

“When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges and mortgages against the debtor; this sub-rogation must expressed and made at the same time as the payment....”

The creditor’s right to receive payment and subrogate his payor to claims against the debtor is broad. In Cox v. W.M. Heroman & Co., 298 So.2d 848 (La.1974) the Supreme Court stated:

“A creditor ... has the right to receive payment on a debt owed him and, by contract, to subrogate his payor ... to his claim. The debtor ... cannot, by prohibiting the payor ... to make such payment, thus limit the creditor’s legal right to make such a contract in order for the latter to receive payment. Subro-gation is thus permitted in interest of the creditor rather than of the debtor.”

In Standard Motor Co. v. State Farm Mutual Automobile Ins. Co., 97 So.2d 435 (La.App. 1st Cir.1957), the Court, through Judge Tate, addressed the issue of the plaintiff’s right of action based on subrogation where the plaintiff deemed a voluntary payor who had no legal liability to the creditor for a loss caused by the debtor tortfeasor. In that case, there had been no conventional subrogation, but rather the plaintiff was relying on legal subrogation. The defendant therein argued that, in the absence of a conventional subrogation the plaintiff had no right of action. The court in Standard Motor Co. nonetheless found that the plaintiff had a right of action to recover the payment it had made from the person legally liable for the debt. The court referred, inter alia, to the theory of negotiorum gestio to allow the plaintiff’s complaint against the defendant tortfeasor.

Appellee relies on Singleton v. Kindler, 399 So.2d 1313 (La.App. 4th Cir.1981), however, the case is distinguishable, as the plaintiff no-fault insurer received no conventional subrogation, only a general release.

In Landry v. Puritan Ins. Co., 422 So.2d 566 (La.App. 3rd Cir.1982), a manufacturer of mobile homes excepted to an insurance company’s third party demand for damages to one of the mobile homes built by the manufacturer claiming that such defects were not covered under the policy. This court found that the policy excluded losses caused solely by such defects and referred to the merits the question of the extent to which the defects caused the loss, allowing the insurer’s demand against the manufacturer.

The Landry case presents essentially the same factual and legal issues. Simply stated, the parties in the present case do not know what caused the collapse and they are asking the Court to decide.

The plaintiff, having paid $10,138.27, had an interest in recovering that sum from the party responsible for the loss. The conventional subrogation, included in the subrogation receipt, clearly shows that the plaintiff had been subrogated to all the rights against the defendant that were available to the insured.

Accordingly, the judgment which maintained defendant’s exception of no right of action and dismissed plaintiff’s suit, without prejudice, is reversed, and the case is remanded to the trial court for further proceedings. Defendant is cast with all costs of this appeal.

REVERSED AND REMANDED.


author: FORET, Judge.

text:
    Elton DEVILLE, Plaintiff-Appellant, v. The ORLEANS OIL COMPANY OF LAFAYETTE, LA., Defendant-Appellee.
    No. 83-848.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Elton Deville, in pro. per., plaintiff-appellant.
    Hurlburt & Privat, George R. Privat, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   FORET, Judge.

Plaintiff, Elton Deville, appeals the trial court’s denial of the confirmation of a default judgment against defendant, The Orleans Oil Company of Lafayette, Louisiana. Plaintiff’s original petition was filed on April 7, 1983, and served on the defendant on April 11, 1983. On April 25, 1983, in response to plaintiff’s original petition, defendant filed a dilatory exception of vagueness which was not heard and overruled until June 14, 1983. Prior to the disposition of defendant’s dilatory exception, plaintiff obtained a preliminary default. This was on May 16, 1983. On May 20, 1983, plaintiff attempted to confirm the default but the trial court denied plaintiff’s motion for confirmation of the default judgment. From this denial the plaintiff appeals.

The sole issue in this case is whether the trial court properly denied plaintiff’s motion for confirmation of a default judgment.

In Crawford v. Crawford, 400 So.2d 736 (La.App. 3 Cir.1981), we examined the relevant articles of the Code of Civil Procedure and concluded that the filing of a declinatory exception extends the time allowed for defendant to answer until ten days after the disposition of the exception, and that when no such disposition has been made, the time allowed for answering has not elapsed and no default judgment may be entered. The same result is reached with respect to the dilatory exception since the pertinent articles make no distinction between the declinatory and dilatory exceptions in this regard.

In the instant case, defendant timely filed a dilatory exception of vagueness. Before this exception was disposed of by the court, plaintiff attempted to confirm a default judgment. The trial court properly denied plaintiff’s motion for confirmation of the default.

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

AFFIRMED.

      . LSA-C.C.P. Articles 929, 1001, 1701, 1702.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Richard S. MONK, Defendant-Appellant.
    No. CR83-1054.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1984.
    Writ Denied Nov. 9, 1984.

      F. Clay Tillman, Jr., Tillman & Fontenot, Leesville, for defendant-appellant.
    Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and DOUCET, JJ.
   DOUCET, Judge.

The defendant was convicted of Second Degree Murder and now appeals on the grounds his jury was not impartial and the evidence established his insanity at the time of the crime.

Defendant challenged two prospective jurors for cause, who were subsequently seated nonetheless, after defendant exhausted all peremptory challenges. The first juror challenged, Mrs. Glenda Phillips, knew the victim’s husband and worked with him at a local bank. Defense counsel was required to voice his objections to this prospective juror in the presence of all potential jurors.

Juror Warren Steadman had been represented by the District Attorney’s law firm and was also first cousin to the D.A. Defense counsel challenged Mr. Steadman for cause contending his close relationship with the D.A. precluded him from being impartial.

The facts leading to defendant’s arrest are as follows: On Monday, March 7, 1983, the defendant’s car broke down in front of a convenience store on LA Highway 165 in Glenmora, Louisiana. Mr. Monk was seen working on the car that day and the car remained at that location for the rest of the day and Tuesday. On Wednesday, March 9, 1983, the automobile was still parked at the convenience store and that afternoon, the defendant worked on the automobile. While the defendant worked on his automobile, he took a break and went into the convenience store and purchased a six-pack of beer.

The Mr. Quick Insurance Agency was located some 75-100 feet away from the convenience store. It was housed in a small mobile building fronting on LA Highway 165. The victim of this homicide, Mrs. Joyce Prether, had recently purchased the agency where she usually worked in the office alone. On March 9, 1983, Mrs. Prether was working at her office as usual. At approximately 3:00 — 3:30 P.M. that afternoon, she walked over to the convenience store by the defendant’s automobile and purchased a soft drink and some ice and returned to her office. A short while after returning to her office, the defendant appeared. Mr. Monk asked for and received a quote Tor insurance on his automobile. After receiving the quote, the defendant left the building and returned a short while later inquiring about insurance on unimproved farm land. As Mrs. Prether went into the rear part of the office, apparently to get a calendar for the defendant, the defendant attacked her, stabbing her four times in the chest and once in the neck with a hunting knife. Mr. Monk then left the building on foot carrying the calendar with him.

The defendant was seen leaving the building. He was on foot and began walking to his home. He was picked up by an acquaintance and driven to his mother-in-law’s home. His mother-in-law took him to his wife’s grandfather’s home and from there, his wife’s grandfather and he came back to Glenmora and towed his car away from the convenience store. Ironically, sheriff deputies and police stood and watched the automobile being towed away as they investigated the murder, not knowing that the defendant was the suspect they were looking for.

Investigation by the Rapides Parish Sheriff Department and the Glenmora City Police resulted in the arrest of the defendant on a charge of First Degree Murder. After his arrest, the defendant gave a full confession to the investigating officers, wherein he admitted to killing the victim, Joyce Prether.

The defendant was tried on September 12, 1983, for the offense of Second Degree Murder and the jury returned a verdict of guilty as charged and defendant was subsequently sentenced to life imprisonment without benefit of parole, probation or suspension of sentence.

The voir dire of Mr. Steadman reveals that Mr. Steadman is and has been an Allstate Insurance Agent for twenty years; that he and Mr. Roberts, the prosecuting attorney, went to high school together some years ago and that was the extent of their friendship; that Mr. Steadman was represented by a person in the firm with the District Attorney, Ed Ware, some ten or twelve years ago and that such representation dealt with heir property; that he is a first cousin with the District Attorney of Rapides Parish, Ed Ware; that this relationship would not cause him to be uneasy; and, that his relationship with the prosecuting attorney, Mr. Roberts, would not affect him.

Mr. Steadman was challenged for cause by the defense. After the challenge and argument by the defense, the judge questioned Mr. Steadman concerning' his relationship with the District Attorney as follows:

“BY THE COURT:
Q. Mr. Steadman, I believe you told Mr. Tillman in testifying that you felt, even though you were a cousin of Edwin Ware, the District Attorney, that that relationship would have no affect on your verdict, is that correct?
BY MR. STEADMAN:
A. Yes, it is.
BY THE COURT:
Q. And you would abide by your oath and disregard that relationship and have no problem doing that?
BY MR. STEADMAN:
A. Yes, sir.
BY THE COURT:
I rule that he’s qualified.”

Defendant contends that the refusal of the challenge for cause by the trial judge of Mr. Steadman was in error. In addition, defendant asserts that the trial court erred in refusing to allow a challenge for cause of Glenda Phillips, who knew the victim’s husband.

Defendant also claims the trial judge erred in requiring him to voice his objections to Mrs. Phillips in the presence of other jurors. The voir dire of Mrs. Phillips is as follows:

“BY MR. ROBERTS:
Q. Can you, if you are chosen as a juror, sit there calmly and dispassionately and listen to the evidence that’s presented to you and then deliberate upon the guilt or innocence of this defendant withoutletting prejudice or sympathy either for or against the State or the defendant enter into your mind as to his guilt or innocence?
BY MRS. PHILLIPS:
A. Yes, I can.
* * * * Sfc *
BY MR. TILLMAN:
Q. Is there anything at all that you want to call to our attention about service on the jury?
BY MRS. PHILLIPS:
A. The only thing I do know Jack Prether, her husband.
BY MR. TILLMAN:
Q. How long have you known Mr. Prether?
BY MRS. PHILLIPS:
A. Well, he works at a different branch than me, but you know, we’re not close friends or anything. I know him when I see him.
BY MR. TILLMAN:
Q. He works at the bank, the Guaranty Bank?
BY MRS. PHILLIPS:
A. Uh-hum.
BY MR. TILLMAN:
Q. And have you discussed this case with Mr. Preth in any way sense or form?
BY MRS. PHILLIPS:
A. No.
BY MR. TILLMAN:
Q. And I understand that sometimes we ... have a way of throwing out questions like, Would you be prejudice?” That ... that’s ... I think that’s hard to answer but is there anything at all in that relationship that would cause you any concern about serving on the jury that would' have to make an ultimate decision about responsibility in Mr. Prether’s wife’s death?
BY MRS. PHILLIPS:
A. No.
BY MR. TILLMAN:
Q. You feel you can set aside any ... any need to ... to vilifyher or to ... in other words, you think you can set aside all your personal feelings, and decide this calmly and dispassionately on the facts? BY MRS. PHILLIPS:
A. I feel like I can.
⅝ * * Sc * sfc
BY MR. TILLMAN:
Q. Do we have your recognition, Mrs. Phillips, that if you are selected ... if you stand and take the oath that these other eleven people have taken that you will fairly and impartially decide this case based only upon the evidence?
BY MRS. PHILLIPS:
A. Yes, sir.
BY MR. TILLMAN:
Q. Can you put aside prejudice that may exist in favor of Mr. Prether or against Mr. Monk in this case?
BY MRS. PHILLIPS:
A. Yes, I could.
BY MR. TILLMAN:
Q. And can you follow the law as the court instructs you is the law of the State of Louisiana?
BY MRS. PHILLIPS:
Yes, I can.
BY MR. TILLMAN: I have no other questions, Your Honor.
BY MR. ROBERTS: State accepts.
BY THE COURT: State accepts. Defense?
BY MR. TILLMAN: Your Honor, the defendant would challenge Mrs. Phillips for ... for cause.
BY THE COURT: On what theory?
BY MR. TILLMAN: The theory of the cause is that there’s a relationship between the juror and the family of the victim that may ... well, it’s reasonable to conclude that it might influence the juror in arriving at a verdict. We ... we’re put in anonymous position of argu- - ing while we may not necessarily believe that Mrs. Phillips is going to be dishonest. We’re put in the position of arguing that there is a relationship that exist between her and the alleged victim’s husband by employment that might the chance, however small, of affecting or influencing her in arriving at a verdict. Simple social pressures may be enough to do so and we think that that ... as long as that possibility exist (sic) that Article 797 is directed towards the overabundance of caution in ruling out that possibility of letting that happen in this case.
BY THE COURT: I think the Voir Dire examination speaks clearly for itself on the relationship and how she will act as a juror. I’m satisfied she will be fair and I refuse the challenge.”
sjs ⅝ ⅜! ‡ ⅜5 ⅝

The right to a jury trial guarantees to an accused a fair trial by a panel of “impartial and indifferent” jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The constitutional guarantee of an impartial system of jury selection in a State criminal trial rests on the due process clause of the Fourteenth Amendment of the Constitution of the United States of America. Whitus v. Georgia, 385 U.S. 545, 549, 550, 87 S.Ct. 643, 646, 17 L.Ed.2d 599 (1967). Due process require a tribunal be impartial. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Impartiality of a juror is not a technical concept as much as it is a state of mind. United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936). A prospective juror’s statement that he or she will be fair and impartial is not binding on the trial court. State v. Lewis, 391 So.2d 1156 (La.1980). The defendant is denied due process where circumstances affecting the juror exist which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance clear and true between the state and the accused. Phillips v. Smith, 485 F.Supp. 1365 (S.D.N.Y.1980); State v. Monroe, 366 So.2d 1345 (La.1978).

There is a presumption that a jur- or’s answers on voir dire are truthful. Irvin v. Dowd, supra. The trial judge is vested with broad discretion in ruling on a challenge for cause which ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Sylvester, 400 So.2d 640 (La.1981). We cannot conclude the trial judges decision in this regard warrants reversal.

Articles 782-88 of the Louisiana Code of Criminal Procedure relate to the examination of potential jurors for service. No provision in our law either prohibits or requires the sequestration of prospective jurors for an individual voir dire. In general, details as to whether the potential jurors should be called singly or by groups are left to the court’s discretion. La.C.Cr.P. 784, comment c; art. 786. Unless there is a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, there is no requirement that the examination of each juror must be conducted individually. Cf. State v. Goodson, 412 So.2d 1077 (La.1982); State v. Lindsey, 404 So.2d 466 (La.1981). We find no error in the present procedure employed warranting reversal.

The standard of review of sufficiency of the evidence is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Camp, 446 So.2d 1207 (La.1984); State v. Smith, 445 So.2d 521 (La.App. 3rd Cir. 1984).

Under Louisiana law one is presumed sane and the defendant who enters a dual plea of “not guilty and not guilty by reason of insanity” has the burden of proving insanity at the time of the offense by a preponderance of the evidence. La.C.Cr. Pro. art. 652. The State, of course, bears the burden of proving the defendant’s guilt beyond a reasonable doubt. Appellant contends that, since the defendant has the burden of proving insanity at the time of the offense, a reviewing court should accept the facts concerning insanity in a light most favorable to the defendant in reviewing the sufficiency of evidence. The defendant’s position is not well-founded.

A reviewing court will reverse a trial judge’s ruling that defendant is sane only when it finds under facts and circumstances of the case that a rational fact finder, viewing the evidence in light most favorable to prosecution, could not have concluded that defendant failed to prove by a preponderance of the evidence that he was insane at time of the offense. State v. David, 425 So.2d 1241 (La.1983). State v. Roy, 395 So.2d 664 (1981). We have reviewed the record in accordance with the above standard and conclude the evidence is sufficient to sustain a finding that defendant failed to prove his insanity by a preponderance of evidence.

For the reasons assigned above, the defendant’s conviction is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.


author: LABORDE, Judge.

text:
    Sherry Joe Davis OWENS, Plaintiff-Appellee, v. CITY OF JENNINGS MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, Defendant-Appellant.
    No. 83-809.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    F. Jefferson Millican & Andre Buisson, Jennings, for defendant-appellant.

      Charles L. Bull, Jr., Welsh, for plaintiff-appellee.
    Before LABORDE, YELYERTON and KNOLL, JJ.
   LABORDE, Judge.

Sherry Joe Davis Owens, plaintiff, appealed to the district court from defendant’s, City of Jennings Municipal Fire & Police Civil Service Board, affirmance of her dismissal from employment as a police officer. The district court held that Owens was improperly discharged on the basis of having committed an alleged “immoral act” constituted by her unwed pregnancy. The court ordered reinstatement and back pay. Defendant appeals. We affirm.

FACTS

Sherry Owens divorced her husband on April 7, 1980. She was subsequently employed by the City of Jennings in July 1980 as a police officer. The record reflects that she received an average score on the civil service exam and that she engaged in extensive training, meeting all of the necessary qualifications and requirements to be a policewoman.

On July 20, 1981, Sherry was granted a leave of absence, with pay, in connection with her first unwed pregnancy and childbirth. She returned nearly one year after leave and continued to perform well as a policewoman. On or about February 3, 1983, Merrion Taylor, Chief of Police, learned that Sherry was pregnant again. It appears that she was nearly seven months pregnant' before Chief Taylor became aware of it. This was the second unwed pregnancy from the inception of her employment.

On February 4, 1983, Sherry received a notice by mail from Chief Taylor that her employment as a police officer was terminated because of her “immoral conduct”. The mayor and chief of police dismissed her on the basis of LSA-R.S. 33:2560(A)(5) which proscribes conduct of a discourteous or wantonly offensive nature toward the public or any municipal officer or employee, and any dishonest, disgraceful or immoral conduct. Simply stated, the mayor and chief of police considered her second unwed pregnancy to constitute “immoral conduct”.

Sherry appealed her dismissal before the Civil Service Board, to no avail. She then sought judicial review in the district court. The district court reversed the civil service ruling on the basis that LSA-R.S. 33:2560(A)(5) failed to define “immoral conduct” and, further, that such application of the law offended the constitutional requirements of equal protection of the law. The court refused to classify an unwed pregnancy as “immoral conduct” within the meaning of the statute in the absence of definite standards, and ordered reinstatement of plaintiff with back pay.

Defendant appeals from this trial court judgment.

UNWED PREGNANCY — IMMORAL CONDUCT?

The sole issue on appeal is whether Sherry’s unwed pregnancy, within the meaning of LSA-R.S. 33:2560(A)(5), gives rise to “immoral conduct” thereby constituting a valid basis for terminating her status as a civil service police officer. LSA-R.S. 33:2560(A)(5) provides:

“§ 2560. Corrective and disciplinary action for maintaining standards of service
A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service or take such disciplinary action as the circumstances warrant in the manner provided below, for any one of the following reasons:
* * * ⅝ * ⅝
5. Conduct of a discourteous or wantonly offensive nature toward the public or toward any municipal officer or employee, and any dishonest, disgraceful or immoral conduct.”

The defendant argues that Sherry failed to give notice of her pregnancy and that by virtue of her unwed status she has in fact committed an “immoral” act worthy of discharge from her job. The defendant further states in brief that Sherry’s pregnancy poses grave risks of harm, to herself and the unborn, in her line of duty as a policewoman. We note that for Sherry’s first pregnancy, her supervisor gave her less cumbersome duties during her final months of pregnancy.

Although we agree with the latter contention, that a seven-month pregnancy may interfere with a female police officer’s proper and adequate administration of her duties because of the potential harm to herself or the unborn, we do not find that Sherry Owens was terminated for that reason. Rather, the record indicates that she was terminated from employment for having engaged in sex out of wedlock which resulted in a pregnancy for which the defendant deems “immoral conduct”. In the course of the civil service hearing, counsel for defendant remarked:

“The whole act of the conjugation outside of the marital bed, the conception that occurred as a result of the conjugation outside of the marital, legal marital bed, and the pregnancy, and, we hope, the very safe birth of an illegitimate child. Those are what we are saying are the acts of conduct that are immoral. Now, how else can we say it? He said it five times, ten times now.” (Tr. 53)

The trial court succinctly addressed the issue in this case. We fully agree with the following excerpt of the reasons for judgment articulated by the trial judge.

“Another question is raised as to the fact of discrimination against this police officer because she is a woman. The court feels that this is true. There is reliance on the fact that by an unmarried becoming pregnant, she, therefore, has conducted herself in an immoral fashion. Had she not become pregnant she could have been living with or sleeping around in any number of situations for which there would have been no penalty. The same thing would be true of a man who may be unmarried, a police officer or a fireman, and living with someone else by whom he may have a number of illegitimate children. Isn’t his immoral conduct, too, then the same and should he not be discharged under the same reasoning as applied by the board in this case. The fact that he does not become pregnant, therefore, eliminates him from the immoral conduct.
Until such time as the city or the state tells us what immoral conduct is and provides standards to be applied to determine the immoral conduct, the statute has no meaning and is actually unfair to employees of either a fire or a police department, and particularly if a woman is involved.
Therefore, the opinion of this court is that the police patrolman, Sherry Jo D. Owens, was wrongfully dismissed by the City of Jennings, and she is ordered reinstated with pay except for such time as she would be allowed to be off duty for the delivery of her child and postnatal care.

We note that the legislature may provide gender-based laws for special problems of women without offending the equal protection clause. Michael M. v. Superior Court of Sonoma Cty., 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981). However, the gender-based application of the present statute by the defendant cannot withstand constitutional challenge. The imposition and enforcement of the “moral” portion of the statute only against unwed and pregnant women is not substantially related to the achievement of any important governmental objective. The facts are clear that had Sherry been married, the termination would not have occurred. Further, the portion of the statute under which she was discharged fails miserably in proscribing what is “immoral”.

The party asserting or defending such a challenged classification carries the burden of demonstrating both the importance of the governmental objective it serves and the substantia] relationship between the discriminatory means and the asserted end. Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980). The defendant’s governmental importance and objective in terminating the job of an unwed and pregnant policewoman because of the appearance of “immorality” as defined by the chief of police and mayor does not accomplish any meaningful ends. Such action is invidiously discriminatory not only as to women, but, moreover as to unwed women who choose to have children. Regardless of the social taboo placed upon unwed pregnancies, the right of a woman to engage a pregnancy should not be restricted by arbitrary application and enforcement of governmental standards that do not exist, or by laws that are ill defined. U.S. CONST, amend. IX; See, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

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

AFFIRMED.


author: YELVERTON, Judge.

text:
    Geraldine Litteral WILLIS, Plaintiff-Appellee, v. Osborne Ray WILLIS, Defendant-Appellant.
    No. 83-842.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    Miguez & Leckband, Carl A. Leckband, Jr., Lake Charles, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, David R. Painter, Lake Charles, for plaintiff-ap-pellee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Upon the termination of a community property marriage, during which community funds were used to pay the mortgage notes on one spouse’s separate property that was occupied as the matrimonial residence, is the amount paid in interest on the mortgage notes included in the reimbursement to which the other spouse is entitled? This is the issue raised by Osborne Willis, appellant, who asks us to reduce a judgment ordering him to reimburse his former wife, Geraldine Willis, $4,416.16 of community funds paid on mortgage notes during the four years (1977-1981) that the community was in existence. Finding that the interest payments after January 1, 1980, were improperly included in the judgment, we remand with instructions to the trial court to determine the amount of interest paid and reduce the judgment by that amount.

The facts were stipulated. When the parties married in 1977, Osborne owned separate property, a residence, burdened with two mortgage notes requiring combined payments of $231.91 a month, amounts which included both principal and interest. The couple made this residence their family home, and for four years the monthly installments on the mortgage notes were paid with community funds, totaling $11,131.68. When the community property regime terminated by separation in 1981, Geraldine claimed reimbursement of one-half of the community property used to make the monthly payments. The trial judge allowed reimbursement of one-half of only the principal amount of the payments made during the time period before January 1, 1980; for the period after that date, believing that there had been a change in the law, he allowed reimbursement of one-half the total payments of both principal and interest.

We agree with the trial court’s determination of the measure of reimbursement for the time period before January 1, 1980. Under former Civil Code art. 2408, when separate property increased in value, the other spouse was entitled to one-half the enhanced value. Thus, when separate property was used as a community home, and community funds were used to pay a mortgage note incurred as a separate obligation, on termination of the community the other spouse was entitled to reimbursement of one-half the principal, but not one-half the interest payments. Hurta v. Hurta, 260 So.2d 324 (La.App. 4th Cir.1972). The Fourth Circuit in Hurta equated the increase in value with the principal payments on the mortgage note. Further, it reasoned that, because the husband’s separate property was used as the family home, the interest paid on the mortgage note was a community expense in producing a “profit” to the community under former article 2402:

“... By providing his separate house as the family home, the husband dedicates its actual ‘profits’, although not reduced to a dollar-revenue, to the community, and that dedication produces an actual, in-pocket, dollar saving to the community in the form of the rent for another house which the community consequently does not have to expend.
“The husband’s separate property unquestionably did produce ‘profits’ to the community, and, in the supreme court’s words in [Succession of] Ratcliff, supra, [209 La. 224] 24 So.2d [456] at 460 [1945], ‘it is but just, equitable and proper that the ordinary expenditures required in the production of such profits and in the preservation of the property should be borne by the community.’ ...”

On the basis of the reasoning of the Hurta case, we think the trial judge in the present case was correct in limiting the reimbursement to one-half the amount of principal paid on the mortgage notes for the period before January 1, 1980.

Neither the codal underpinnings nor the logic of Hurta were changed by the new Matrimonial Regimes Law (Act 709 of 1979), effective January 1, 1980, as applied to the present issue. It is true that present articles 2364 and 2366 changed the measure of reimbursement from one-half the enhanced value to one-half of the community property so used. These articles read: “Art. 2364.

“If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.”
“Art. 2366.
“If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.”

However, applying the reasoning of Hurta and looking at present laws in pari mate-ria, we note that the fruits and revenues of Osborne’s separate property (unless reserved by him, which was not done in this ease) belonged to the community. Civil Code art. 2339. The use of Osborne’s separate residence by the community was an enjoyment of the “natural and civil fruits” of the separate property. The cost of this benefit to the community included the payment of interest. Succession of Ratcliff, 209 La. 224, 24 So.2d 456 (1945). The principal payment on Osborne’s notes went to the satisfaction of a separate obligation under article 2364, as well as to the “acquisition ... or benefit of the separate property” under article 2366, and did not benefit the community at all. Therefore, the payment of the principal with community funds entitles the other spouse to reimbursement. On the other hand, the payment of interest benefitted the community, because this was a business cost of maintaining the natural and civil fruits of this separate property for the community’s use. Therefore, the interest cost should not have been included in the amount to which the other spouse was entitled to reimbursement.

The record in the present case does not contain a breakdown of principal and interest for the mortgage note payments during the months that the community was in existence following January 1, 1980. For that reason we are unable to amend the judgment to correctly reflect the reduced amount of reimbursement to which Geraldine is entitled. It is necessary that we remand the case to the district court, and we do so with instructions that the district court determine the amount of interest paid on the mortgage notes from January 1, 1980, until the termination of the community, and deduct that amount from the judgment rendered herein. In all other respects, the judgment appealed is affirmed. Costs of this appeal shall be borne equally by the parties.

AFFIRMED IN PART; AMENDED IN PART; AND REMANDED.


author: KNOLL, Judge.

text:
    Leo Paul ROMAR, Plaintiff-Appellant, v. ESTATE OF Mrs. Irene GAY and Nolan Soileau, Curator, Defendant-Appellee.
    No. 83-849.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.

      Skipper M. Drost, Sulphur, for plaintiff-appellant.
    Duval, Funderburk, Sundberry & Lovell, Clayton E. Lovell, Houma, for defendant-appellee.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Leo Paul Romar brought a possessory action against Nolan Soileau and Murrell A. Richard, the joint testamentary executors of the Estate of Mrs. Irene Gay, on april 14, 1980, alleging that the defendants had disturbed his possession of approximately 188.9 acres by sending him a demand letter on February 25, 1980, ordering him to remove his fences and leave the property.

In a separate action, the joint executors filed a petition for injunctive relief to prevent Romar from cutting and removing timber from the disputed tract. The two actions were consolidated for trial. The trial court dismissed Romar’s possessory action with prejudice and granted the in-junctive relief sought by the Estate of Irene Gay. We affirm.

Romar appeals contending that the trial court erred: (1) in failing to find that his activities constituted corporeal possession of the disputed property; and, (2) in granting injunctive relief to the Estate of Irene Gay.

POSSESSION

In establishing a possessory action the following procedural articles are pertinent. LSA-C.C.P. Art. 3658 provides:

“To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance. ”

LSA-C.C.P. Art. 3660 provides in pertinent part:

“A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even■ as a usurper.

The question of whether the acts of Romar constitute possession is a factual determination by the trial court and its determination will not be disturbed on appeal unless it was clearly wrong. Meche v. Graham, 421 So.2d 461 (La.App. 3rd Cir. 1982); Ryan v. Pekinto, 387 So.2d 1325 (La.App. 1st Cir.1980), writ denied 394 So.2d 615 (La.1980); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In any possessory action the burden of proof is upon the plaintiff to establish the essential elements thereof. C.C.P. Art. 3658; Chaney v. State Mineral Bd., 444 So.2d 105 (La.1983).

Romar stipulated that title to the disputed property was in the name of Irene Gay (now her estate). However, he contends that he has possessed this property since 1935, when his father, now deceased, erected a fence enclosing the property, and that he has continued to maintain and repair it ever since.

Romar, since he is not the titled owner, has the burden of proving possession, to the extent of corporeal possession. LSA-C.C. Art. 3426 provides in pertinent part: “... In the absence of title, one has possession only of the area he actually possesses.” Corporeal possession is defined in LSA-C.C. Art. 3425 as “... the exercise of physical acts of use, detention, or enjoyment over a thing.”

This burden of proof was addressed in City of New Orleans v. New Orleans Canal, Inc., et al., 412 So.2d 975 (La.1982) (On Rehearing), as follows:

“When a possessor has a title, his exercise of possession over a part of the property constitutes the exercise of constructive possession of the whole; however, when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch ’, so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the posses-sory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession.” (Citations omitted.) (Emphasis added.)

Further in City of New Orleans, supra, the term “enclosures” as applied to the posses-sory action was explained as follows:

‘Enclosed’ does not necessarily mean fenced in’, but does require ‘that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, [whether] by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof’ Hill v. Richey, 221 La. 402, 59 So.2d 434 [at 441] (1952)”

The requisite possession to entitle one to bring the possessory action is identical to the possession which is required to commence the running of acquisitive prescription. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). The corporeal possession required in a particular case is “... governed by the nature of the land and the use to which the land is put.” Cheramie v. Cheramie, 391 So.2d 1126 (La.1980); Liner, supra.

In the case sub judice, the disputed property is used as woodland. Although some of the testimony was contradictory, it nonetheless established that: (1) as late as 1965 there was no fence along the southern and eastern perimeter of the property, and after that date landowners adjacent to the disputed property erected a fence along those boundaries which were continuously maintained by them; (2) until 1973 no fence existed along the western edge of the disputed property because cows repeatedly wandered into the adjacent soybean fields; (3) no visible enclosure existed along the northern boundary; (4) the neighboring landowners never saw Romar or his family maintain the fence.

The possessor of land claiming ownership by possession rather than title, must have uninterrupted possession, with the intent to possess as owner. In City of New Orleans, supra, the Louisiana Supreme Court stated:

“[The corporeal possession required to institute a possessory action] must be open, continuous, public, unequivocal and uninterrupted with the intent to possess as owner. Succession of Kemp v. Robertson, 316 So.2d 919 (La.App., 1975), writ den. 320 So.2d 906 [(La. 1975)]. The intent to possess as owner cannot be inferred when the circumstances are insufficient to give reasonable notice to the public and the owner of the property that the possessor is unequivocally possessing as owner. Woodell v. Roberts, 329 So.2d 858 (La.App.1976), writ ref. 333 So.2d 2)8 [(La.1976) ]. ”

Romar contended that he and his family have annually hunted the entirety of the disputed property. We observe however, that the neighbors and most of the witnesses who testified stated that they, too, hunted the disputed woodland without obtaining permission. Romar also attempted to show that he used the property to graze cows and horses. Witnesses’ testimonies varied from having seen no animals on the property to having seen anywhere from three to twenty animals. Although the record supports the conclusion that some animals did graze on some of the property, it is inconclusive regarding the portion of the disputed woodland on which the grazing activity took place. In a similar vein, Romar’s son testified that he posted the property within the last several years. Again, this evidence was directly contradicted by a witness who testified that he and his sons obtained a verbal hunting lease on the woodland from the titled owner and had posted the disputed property themselves.

Romar further contends that he conducted logging operations and built improvements on the disputed land. Continuous possession must be exercised at regular intervals. Harvey v. Harvey, 431 So.2d 786 (La.App. 1st Cir.1983). His actions were not continuous. The only cutting of logs which took place on the property occurred, for three months duration, in 1963, 1964, and 1965. It was not until after Romar initiated this possessory action in 1980 that he again logged. Similarly, the only improvements placed on the property by Romar were a small tree house and a corral in 1951, both of which have totally deteriorated.

Two groups of opposing witnesses attempted to demonstrate activities to the trial court to establish the contradictory claims of possession urged by the parties. The trial judge viewed all the witnesses and examined the evidence, and concluded that Romar’s activities on the disputed property were not sufficiently open, continuous, public, unequivocal, and uninterrupted to put the public on notice that he was possessing the 188.9 acres as owner. The record, taken in its entirety, supports the trial judge’s factual determinations and will not be disturbed. Meche, supra; Arcen-eaux, supra.

INJUNCTION

Romar next contends that the trial court improperly granted injunctive relief to the Estate of Irene Gay.

LSA-C.C.P. Art. 3663 provides in-junctive relief in two cases: (1) as an ancillary remedy in a possessory action; and (2) as the relief granted in an injunction suit which is neither a possessory nor a petitory action brought to enjoin trespassers and other disturbers. Official Revision Comments to C.C.P. Art. 3663; Ryan, supra. The requisite proof for this injunction is (1) possession of the property for more than one year prior to the disturbance; (2) that a disturbance occurred; and (3) that suit was filed within one year of the disturbance. Ward v. Standard Materials, Incorporated, 293 So.2d 885 (La.App. 1st Cir.1974). Possession of the property for more than one year by the Estate of Irene Gay is all that is at issue on appeal.

Possession is an indispensible prerequisite for a party relying on Art. 3663. Ryan, supra; Babington Children Trusts v. Eimer, 285 So.2d 792 (La.1973). A titled owner has a lesser burden of proving possession than does a trespasser since the owner can rely on constructive possession in which possession of part is possession of the whole, whereas the trespasser must corporeally possess within boundaries. Ward, supra; Ryan, supra.

It was stipulated that Irene Gay (and now her estate) was the titled owner of the disputed property. She acquired title to the property in 1948. She granted surface leases, mineral leases and rights of way. Her employees regularly inspected the property until the early 1970s. Since 1971 Soileau held Irene Gay’s power of attorney until her death, and administered her property. Approximately two years prior to this lawsuit he entered into a verbal agreement with Albert Landos for hunting rights on the disputed lands. Mr. Landos and his sons regularly camped in the woods, sometimes four nights at a time, hunted the entire disputed land, and put posted signs along the perimeter of the woods. The executors of the Estate of Irene Gay also introduced numerous exhibits including tax receipts, aerial photographs, and a survey of the property dated April 16, 1980.

After observing all the witnesses and examining the evidence, the trial judge concluded that the Estate of Irene Gay established the requisite possession to obtain injunctive relief and that Romar’s acts had not amounted to an eviction. Taken in its entirety, the record supports the trial court’s factual determinations and will not be disturbed. Arceneaux, supra.

Romar also urges that* before obtaining an injunction, the Estate of Irene Gay should have been required to prove title good against the world. We find this to be without merit since title was not at issue. C.C.P. Art. 3663; Ryan, supra; Ward, supra.

For the foregoing reasons, the trial court’s judgments are affirmed. All costs of the appeal are assessed against the appellant, Leo Paul Romar.

AFFIRMED.


text:
    Murrell A. RICHARD, et al., Plaintiffs-Appellees, v. Leo Paul ROMAR, et al., Defendants-Appellants.
    No. 83-850.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 23, 1984.
    Skippmer M. Drost, Sulphur, for defendants-appellants.
    Duval, Funderburk, Sundberry & Lovell, Clayton E. Lovell, Houma, for plaintiffs-ap-pellees.
    Before LABORDE, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

For the reasons stated in the companion case of Romar v. Estate of Gay (Nolan Soileau, Curator), 454 So.2d 431 (La.App.3rd Cir.1984), in which a separate decision is being rendered by us this day, the judgment of the trial court is affirmed. Leo Paul Romar is cast with all costs of this appeal.

AFFIRMED.