author: LOBRANO, Judge. GARRISON, Judge

text:
    STATE of Louisiana In the Interest of the Minor Senedra Madrell BARTEE.
    No. CA-1244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 1984.
    Rehearing Denied March 21, 1984.
    Writ Denied May 11, 1984.
    Lee W. Rand, Max Zelden, Zelden & Zel-den, New Orleans, for plaintiff/appellant.

      Roger R. Roy, New Orleans, for defendant/appellee.
    Before LOBRANO, BYRNES and WILLIAMS, JJ.

      . At the time of writing there are no reported cases citing Matter of Harrell or Wheat v. Street.

   LOBRANO, Judge.

The sole issue in this appeal is whether or not La.R.S. 9:403 allows an individual, (other than a State agency or officer of the Court) to institute proceedings to have a child declared legally abandoned. The facts of this case are as follows:

On or about February 9, 1983, Mrs. Mabel Barley (maternal grandmother of the minor child) executed and filed into the record of the Orleans Parish Juvenile Court an affidavit of abandonment alleging that George Bartee, father of the minor child, Senedra Madrill Bartee, had not seen, contributed to the support of or in any way exercised parental rights with respect to that minor child since on or before January 11, 1976. In her affidavit Mrs. Barley alleged that the minor had resided with her since February 12, 1975. She sought an order declaring her to be legally abandoned by her father George Bartee. The child’s mother died in November of 1982.

On the day of trial, June 20, 1983, respondent appellee, George Bartee filed a Motion to Dismiss alleging that the abandonment proceeding was not instituted in accordance with La.R.S. 9:403(B) in that the proceedings were not brought by the State. The trial judge granted the motion without a hearing declaring that Mrs. Barley in her capacity as a private person was without standing to bring the abandonment proceeding. This appeal followed.

Appellant contends that despite the wording of La.R.S. 9:403(B) , the juvenile court was in error for not following this Court’s holding in State in the Interest of Banks, 392 So.2d 497 (La.App. 4th Cir.1980). Banks held that an individual could institute abandonment proceedings pursuant to La.R.S. 9:403, and that the plenary authority of the Court permitted a finding that the child was in fact abandoned. Prior to the Banks decision, this Court traditionally held that private persons could not bring abandonment proceedings. In the Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir.1975); In Re State in Interest of Fischbein, 194 So.2d 388 (La.App. 4th Cir.1967); In Re Meir’s Adoption, 169 So.2d 583 (La.App. 4th Cir.1964). Our brethren of the First Circuit also follow the pre-Banks approach in interpreting La.R.S. 9:403. Wheat v. Street, 428 So.2d 930 (La.App. 1st Cir.1983); In the Matter of Harrell, 413 So.2d 1346 (La.App. 1st Cir.1982); In Re Allain, 407 So.2d 767 (La.App. 1st Cir.1981).

Although we can fully understand the equities of allowing a private individual to institute abandonment proceedings, especially under factual situations such as those set forth in Banks, supra, we still cannot ignore the plain language of La.R.S. 9:403(B). The abandonment statute is replete with language which clearly shows that the legislature intended that all such procedures be brought by and handled through the State. It sets forth the procedures to be taken by the department when a parent cannot be located, and it instructs the department to report its findings to the Court, and allows for necessary delays for good cause. See footnote 1, supra.

Clearly the legislature is the proper body to correct the abandonment statute and not the Court. We do feel that under certain circumstances a private individual should be allowed to institute abandonment proceedings, however .we cannot authorize such actions. We interpret, not legislate.

Accordingly, we affirm the judgment of the trial court, and in so doing we reverse the holding of State in the Interest of Banks, supra.

AFFIRMED.

GARRISON, Judge

dissenting.

I respectfully dissent from the majority opinion in the following particulars:

I. The Holding of Banks
The majority opinion states- as follows: “Banks held that an individual could institute abandonment proceedings pursuant to La.R.S. 9:403 ...”

This is not the holding of Banks. This court reaffirmed the judiciary’s prior interpretation when it stated “LSA-R.S. 9:403B authorizes an abandonment action to be initiated by an agency or officer of the court.” (At. 498). We also note that the original judgment dated April 30, 1979 in the Banks matter contained the following language:

“PRESENT:
Beryl E. Wolfson, attorney on behalf of the State of Louisiana and Mr. and Mrs. Donald Trotter ...” (emphasis added).

The question of “who must file suit” or “who has the legal capacity to bring suit” under R.S. 9:403 was never an issue in Banks. No motions challenging the Trotters as necessary parties were ever filed. No motion challenging a failure to join an indispensible party, the State, was ever filed because the State was in fact a party. In short, the “holding” reputed to Banks was never even an issue in Banks.

II. The Difference Between Jackson and Banks

In Banks at the trial level, the trial court judge was seeking from this court a distinction between a Banks factual situation and a Jackson factual situation. In Jackson, cited above, at page 913, paragraph 2 the court even stated that:

“The principal issue in this court is whether the evidence established that Jackson ‘refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities ’ R.S. 9:403.” (emphasis added)

The facts in Jackson were totally different, involving a legitimate child, a prior divorce action, court-awarded custody, a dispute over child-support payment, and a sneaky attempt to cut-off the rights of a legitimate parent who had not in fact shown an intention to permanently avoid parental responsibilities, all made through an improper procedure by a strict and .blinded interpretation of the four month rule under R.S. 9:403:

“Jackson and Mrs. Gossett were divorced in Georgia in August, 1967, with custody being awarded to the mother, who moved to Louisiana. The child visited Jackson several times thereafter, but on two occasions a dispute developed over the child’s return and Mrs. Gossett resorted to legal process. Mrs. Gossett refused to allow further visitation in Georgia.
“As to the issue of failure to provide for care and support. Jackson had been ordered by the divorce judgment to pay weekly child support in the amount of $32.50. Alleging he had not complied with this order, Mrs. Gossett instituted a proceeding under R.S. 13:1641, the Uniform Reciprocal Enforcement of Support Law, and obtained judgment in September, 1970, which again ordered Jackson to pay support in this amount. He thereafter made seven weekly payments in five checks’, the last one dated December 24, 1970.
Allegedly on the advice of his attorney not to make further payments while he was being denied visitation privileges, Jackson discontinued support completely. When Mrs. Gossett reactivated the U.R. E.S.L. suit, however, Jackson paid $780.00 on March 3, 1972, tendering this payment upon exacting Mrs. Gossett’s agreement to forego prosecution of the non-support charged.
Jackson further testified that he sent two $20.00 checks in April, 1972 and one $60.00 check in May to the Clerk of Court, as ordered by the Georgia court; that these were returned to him in August; that upon advice, he then sent a check, dated July 23, in the amount of $160.00 to the Welfare Department in Baton Rouge; and that when this check was returned, his attorney advised him to simply wait and ‘sooner or later you’ll hear from it, they’ll have you in court.’ The uncashed checks were introduced as supportive evidence, along with the clerk’s envelope of transmittal. Arguments in this court focused on the factual dispute as to support payments between March and October, 1972. The trial judge in extensive reasons for judgment expressed suspicion as to whether Jackson actually mailed the July, 1972 check to the Welfare Department and concluded that Jackson ‘maintained his previous course of conduct of never paying child support until and unless court proceedings were brought against him.’ The judge observed that a truly concerned parent would have provided necessary support directly when it became apparent the Georgia clerk was not processing his checks.
In the present case Jackson several times allowed four months to pass without providing support for the child. These circumstances indicated his intent not to support the child unless he was forced to do so (or, as he suggests, unless he was provided visitation rights). Non-support is not synonymous with abandonment, but is only evidence tending to establish abandonment. The circumstances of this case did not clearly manifest Jackson’s intention to permanently avoid all parental responsibility.” (emphasis added) (At 913-914).

As shown above, Jackson involved a child-support/visitation dispute between divorced parents. The abandonment proceeding developed as a result of the father’s refusal to pay child support, when his ex-wife denied him visitation privileges. The quotation cited by the trial judge in the Banks case came from a paragraph in which the Jackson court was attempting to distinguish a pure abandonment proceeding from a support/visitation dispute:

“Furthermore, Jackson’s behavior did not create a situation such as the abandonment action was designed to cover. The action to declare a child abandoned is a legislatively ordained procedure in which the state, without parental consent, can summarily place a child with an agency, defined in R.S. 9:401(1), when the child has been deserted or abandoned by his parent or parents. The procedure was not designed to afford a method for one parent to terminate the parental rights of the others; rather, the objective was to allow the juvenile court to place an abandoned child with an agency or designated person in the child’s best interest. While a child who has been judicially declared abandoned can thereafter be placed for adoption by the agency in an agency adoption proceeding, the action to declare a child abandoned was not intended as a first step in a private adoption proceeding or as a method of dispensing with parental consent in such a proceeding.
The abandonment proceeding has perhaps been used to circumvent the consent requirement for adoption. See Pugh, Juvenile Law of Louisiana History and Development, Ch. Ill, p. 276 (1957). However, the legislature in 1958 adopted R.S. 9:422.1 as a means in certain adoption cases of dispensing with the consent of a parent who culpably fails to support his child. Indeed, Jackson may have already forfeited his right to contest a stepfather’s adoption suit by failing for one year to support the child in the mother’s custody. However, that question is properly raised in an action for adoption. The action before us is one by the state to declare the child abandoned, and proof of intent to forever avoid dll parental responsibility is a necessary element of this action.” (Emphasis added) (At 914-915).

The quotation referred to by the trial judge in Banks arose in a zealous discussion of the difference between a pure abandonment action and the Jackson situation in the Jackson opinion. Indeed, the language complained of was merely persuasive because the court had already determined that Jackson had no intent to permanently avoid his parental responsibilities. In its footnote 3, the court in Jackson further noted that Mrs. Gossett’s potential remedy could be found elsewhere:

“3. If the custodial parent needs child support, the U.R.E.S.A. action is available. If the stepparent desires to adopt the child, the action for adoption is available.”

The court in Jackson then went on to state that the abandonment action under R.S. 9:403 was not available to Mrs. Gos-sett in this divorce/custody/support dispute situation. We agree with Jackson on its facts.

Thus Jackson was correct on its facts. In Banks, the trial judge lifted the language verbatim out of the Jackson opinion, without perceiving it in the context of the facts in Jackson, and then applied it to a totally different and opposite factual situation (in Banks, a factually “pure abandonment action”). It was our contention in Banks that Jackson simply did not apply!

Banks did not involve a divorce/child support/visitation dispute. Banks was clearly a “pure abandonment action.” The natural mother not only had failed to provide any support or to show any interest in the child, she had ordered Donald Trotter to take the boy or she would give him away, to “the first person on the street.” She showed absolutely no interest in the child’s welfare for over fopr years and did not provide one dime of support (in contrast to Jackson) even though she was gainfully employed. In short, under all the statutory and juridical elements of abandonment, the child Theodore was clearly “abandoned.”

The trial judge found that under all legal criteria Theodore was clearly “abandoned.” Then the fatal problem arose, however, when the Trotter’s were asked by the biological mother’s attorney if Theodore were later available for adoption, would they like to adopt him. The Trotters, of course, answered yes. At that point, the trial judge lifted the language of- Jackson and concluded that even though Banks was a pure abandonment action, and even though Theodore Banks was truly an abandoned child under the proper legal criteria, and even though the law clearly required that Theodore Banks be declared an “abandoned” child, he could not make that adjudication because of the constraining language of Jackson as applied to his knowledge that if Theodore were available to be adopted, the Trotters would like to adopt him. Was it the intention of now Justice Lemmon, the writer in Jackson, to provide that where there is a legitimate abandonment action, the trial court cannot adjudge a child to be abandoned in the face of all law, solely because “somewhere out there in the world” there is somebody who would like to adopt the child, if available? I think that Justice Lemmon never intended the language of Jackson to result in such an interpretation and that the trial judge was clearly wrong in that interpretation.

What did the language in Jackson mean? “While a child who has been judicially declared abandoned can thereafter be placed for adoption by the agency in an agency adoption proceeding, the action to declare a child abandoned was not intended as a first step in a private adoption proceeding or as a method of dispensing with parental consent in such a proceeding.” (At 914).

It meant that the trial court cannot “put the cart before the horse” — where he has knowledge that the child may be adopted, he cannot disregard the facts and legal criteria of “abandonment” and summarily declare the child “abandoned” solely for the purpose of paving the way for an adoption proceeding. Likewise, however, the language in Jackson also meant that where there is an abandonment action in which the facts and the legal criteria clearly point to a finding that the child is abandoned, the trial court is not precluded from issuing such a finding solely because someone somewhere may want to adopt the child sometime.

In Banks, this court was further concerned that if the trial judge’s misinterpretation of the Jackson language were allowed to stand, an evidentiary problem would be created. In most abandonment actions there is someone, be it a relative, neighbor, or authorized foster parent, who has been caring for the child. Opposing counsel would need only call the provisional caregiver to the stand and ask “If available, would you like to adopt the child sometime?” in order to totally defeat an abandonment action under the trial judge’s misinterpretation above. As a practical matter, a child could never be judicially declared abandoned.

Does Jackson mean that an abandonment action can never lie in a factual context wherein a divorce happens to be found? Of course not.

Jackson is correct on its facts and Banks is correct on its facts. Accordingly, it is a violation of the concept of judicial restraint to overrule Banks.

III. Later Caselaw

The majority opinion cites several later cases: In Re Allain, 407 S6.2d 767 (La.App.1st, 1981), plus Matter of Harrell, 413 So.2d 1346 (La.App.1st, 1982) and Wheat v. Street, 428 So.2d 930 (La.App.1st, 1983), both citing the Attain decision.

In the Allain case, a particularly zealous attorney first cited the Banks case for the erroneous “holding” that was discussed in Section I. It is the job of a good attorney to win his case and, in the zealous pursuit of the fine art of advocacy, attorneys will occasionally “cross the line” by citing cases for propositions for which they do not stand, argue “headnotes” instead of case text, and interpolate factors from very different cases in order to appear to have a holding favorable to their case. The writer agrees with the holding in Allain and reiterates that Banks never stood for that proposition.

IV. Senedra Madrill Bartee

Turning to the case of Senedra Madrill Bartee, we note the following facts. Shelia Marie Barley Bartee and George Bartee were married. On September 8, 1973, Sen-edra, a legitimate child who was issue of the marriage, was born in Houston, Texas. Some five years later, on June 5, 1978, Shelia and George were divorced by judgment of the Civil District Court, Parish of Orleans. Shelia Bartee was awarded custody and no child support payments were ordered. In November of 1982, Shelia Bar-tee died.

Because Shelia Bartee’s job was in Houston, her parents, Mr. Clarence and Mrs. Mabel Barley have cared for the child since February 12, 1975. Apparently, although George Bartee resides in Orleans Parish he has not seen the child since January 11, 1976.

On February 3, 1983, Mrs. Mabel Barley attempted to have the child declared “abandoned” by executing an affidavit. Unlike the Banks case, the State of Louisiana was not a party to this action. Also unlike the Banks case, the legitimate father filed a motion to dismiss which was granted below.

The maternal grandparents, however, are not precluded from obtaining custody. The Civil Code provides as follows:

C.C. Art. 157(A)
“In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.” (emphasis supplied).

C.C. Art. 146, however provides as follows:

“... custody shall be awarded in the following order of preference, according to the best interest of the children:
1. To both parent jointly ...
2. To either parent ...
3. If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
4. To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings...” (emphasis added).

C.C. Article 146 further enumerates various elements of the “best interest of the child” test:

“(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference

Additionally, the Code provides for other options as well:

C.C. Art. 81.
“If a father has disappeared, leaving minor children born during his marriage, the mother shall take care of them and shall exercise all the rights of her husband with respect to their education, and the administration of their estate.”
C.C. Art. 84.
“There shall be appointed for the children a provisional tutor in the manner herein directed, if at the time of the disappearance of the father, the mother should be dead, or if she should die before their attaining the age of majority.”

The majority holds that Mr. and Mrs. Barley chose an improper procedure and are in an incorrect forum. The law does, however, provide a potential future remedy in a properly brought and proven rule to change custody or tutorship action under the Articles cited above. Discussion on the question of whether the Barleys did however, choose an improper procedure and are in an incorrect form follows below.

V. Legislative Appeal

The last part of the majority opinion deals with an appeal to the legislature. We agree with the majority that if their interpretation of the statute is valid, then there is a need for reform. On the face of the statute as now written, however, the majority’s interpretation cannot stand.

A.“May” v. “Shall”

The initial part of R.S. 9:403(B) reads: “An affidavit may be made by an agency, or an officer of the court, ...”

If the majority’s interpretation that only the State (through the agency or officer) can execute the affidavit is correct, then use of the permissive form “may” in the statute is an error. To preclude the execution of an affidavit by a private individual, the statute must read:

“An affidavit shall be made by an agency or an officer of the court, ...”

Thus on the clear language of the statute, I respectfully dissent that the statute does not preclude the execution of the affidavit by a private individual.

B.“An Affidavit”

It is elementary under both the civil and criminal law of this State that an affidavit must be based on personal knowledge or else it is not an affidavit, but rather some other procedural device.

The Code of Criminal Procedure specifies the three methods of instituting criminal prosecutions and the three types of procedural devices:

“A prosecution for an offense which may be punished by death shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information. A prosecution for violation of an ordinance shall be instituted by affidavit. Other criminal prosecutions in a city court and prosecutions in a parish court shall be instituted by affidavit or information. Criminal prosecutions in a juvenile court or family court shall be instituted by affidavit, information, or indictment."

C.Cr.P. Art. 382 (emphasis supplied)..

The Code of Criminal Procedure further defines the three devices. Both the indictment and the information must be authorized in the official capacity of the members of the criminal justice system returning them. In contrast, the affidavit form does not require that the person making the accusation be an authorized member of the internal criminal justice system:

“An indictment is a written accusation of crime made by a grand jury. It must he concurred in by not less than nine of the grand jurors, indorsed ‘a true bill,’ and the indorsement must be signed by the foreman. Indictments shall be returned into the district court in open court; but when an indictment has been returned for an offense which is within the trial jurisdiction of another court in the parish, the indictment may be transferred to that court.”

C.Cr.P. Art. 383 (emphasis supplied).

“An information is a written accusation of crime made by the district attorney and signed by him. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof.” *

C.Cr.Proc. Art. 384 (emphasis supplied).

“An affidavit is a written accusation of crime made under oath and signed by the affiant. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof.”

C.Cr.Proc. Art. 385 (emphasis supplied).

It is clear that under C.Cr.P. Art. 385, the affidavit provides for the institution of an action by a private individual. Judicial notice is further taken of the fact that in many municipal court cases, prosécution is initiated upon the affidavit of a private individual based upon that individuals personal knowledge of alleged criminal acts against him.

Additionally, Criminal Procedure Article 14 further preserves the distinction between an affidavit and other instruments:

“A. If a person refuses to take an oath OR to make a sworn statement OR affidavit required in connection with any criminal proceedings, he may affirm in lieu of swearing, and his affirmation shall fulfill the requirement and shall have the same legal effect as an oath, sworn statement, or affidavit.
B. Every witness shall be sworn or affirm to speak the truth and nothing but the truth.”

Turning to the area of civil law, we note that C.C.P. Article 967 specifically provides that an affidavit be made on personal knowledge:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
“When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

The prior Article 967 also required personal knowledge, as does Federal Rule 56(e). Pacific Legal Foundation v. Watts, 539 F.Supp. 841 (D.C., Cal, 1982).

In order to defeat an affidavit not made on personal knowledge, the opponent utilizes the procedural device of a motion to strike:

“The failure of the opposing affiants to affirmatively show that their statements were made on personal knowledge does not prevent judicial consideration of their affidavits. An affidavit which does not measure up to formal standard is subject to a motion to strike. In the absence of such a motion or other objection, the lack of showing of personal knowledge is waived, unless it is clear from the affidavit itself that it is not based on personal knowledge of the facts. Barnes v. Sun Oil Co., 362 So.2d 761, 763 (La.1978). See, Scharf v. U.S. Atty. Gen., 597 F.2d 1240 (9th Cir.1979); Lacey v. Mutual Fire Ins. Co. of Boston, 554 F.2d 1204 (1st Cir.1977); Assoc. Press v. Cook, 513 F.2d 1300 (10th Cir.1975); 6 Moore’s Federal Practice Section 56.22[1] (2d ed. 1980); Wright & Miller, Federal Practice and Procedure, Civil Section 2738 (1979). In the present case, the record discloses no objection or motion to strike, and it appears the facts could have been within affiants’ personal knowledge.”

Vermillion Corp. v. Vaughan, 397 So.2d 490, 493 (La., 1981). See also: Meyers v. Gulf Ins. Co., 413 So.2d 538 (La.App.4th, 1982); Joiner v. Weeks, 383 So.2d 101 (La.App.3rd, 1980); Childers v. Childers, 373 So.2d 1388 (La.App.1st, 1979); Bernard v. Vidrine, 365 So.2d 525 (La.App.3rd, 1978); Barnes v. Sun Oil Co., 362 So.2d 761 (La., 1978); Atkinson v. Allstate Ins. Co., 361 So.2d 32 (La.App.3rd, 1978); Bonomo v. Lake Forest, Inc., 346 So.2d 358 (La.App. 4th, 1976); McWhiney v. Travelers Ins. Co., 343 So.2d 736 (La.App.2d, 1976); Manuel v. Shaheen, 316 So.2d 878 (La.App.3rd, 1975); Moreaux v. American Mut. Ins. Co., 302 So.2d 686 (La.App.3rd, 1974); Duplessis v. Hullinghorst, 255 So.2d 236 (La.App.1st, 1971); Hidalgo v. General Fire & Cas. Co., 254 So.2d 493 (La.App.3rd, 1971).

In Atkinson, cited above, our bretheran on the Third Circuit re-affirmed the holding of Hidalgo, above, that “... ‘personal knowledge’ means something which the witness actually saw or heard, as distinguished from something he learned from some other person or source.” (At 496) (emphasis supplied).

In McWhitney, above, the court refused to accept the affidavit of the parish coroner based on his autopsy and attesting to the cause of death because the coroner had “no personal knowledge concerning the facts surrounding decedent’s employment, or conditions or hazards to which decedent might have been exposed, nor does he have any personal knowledge concerning the facts or circumstances surrounding decedent immediately prior to and at the time of his death.” At 738.

Returning to the statute at issue, I note that it reads:

“An affidavit may be made by an agency or an officer of the court ...”

As we have just seen, affidavits are based on personal knowledge, C.Cr.Proc. Art. 385, defining affidavits, provides for the institution by a private individual, and C.Cr.Proc. Art. 382 provides for institution in juvenile court “by affidavit, information, or indictment.” It thus follows that if the Legislature had wanted to provide that only the State could institute the proceeding, it would have used the words “indictment or bill of information” instead of “affidavit.” On the clear face of the statute, the legislature meant for a private individual to be able to execute an affidavit to initiate proceedings. This interpretation is especially valid in light of the Legislature’s choice of the word “may”. Clearly the Legislature meant for an agency’s initiation to be in addition to private individual initiation.

C. “Agency or Officer of the Court”

The Civil Code provides that the following individuals are officers of the court: The Clerk, Deputy Clerks, the Minute Clerk, Sheriff, Constable or Marshall, Crier, Court Reporter, Court Appointed Expert and the Attorneys. C.C.P. Arts. 251-375. How often will any of these individuals have the requisite “personal knowledge” — things which they “actually saw or heard”, as distinguished from something he learned from “some other person or source.”? Atkinson, above. Likewise, when will the agency ever have the requisite “personal knowledge”? In short, they rarely will have such “personal knowledge” and it will be impossible to have a valid “affidavit.”

Both the agency or officer generally must rely upon something “learned from some other person or source.” Instead, of an affidavit reading “X’s father told me that he was leaving and never coming back”, the “affidavit” would have to read “Y told me that X’s father said that ...” Such a writing would not be an affidavit at all, but rather it would only be ritualized hearsay.

D. The Intent of the Legislature in R.S. 9:403(B)

Having thus seen that the statute as written clearly provides on its face for the institution of proceedings by a private individual, does this mean that the State has no part in the abandonment proceeding? Clearly, not. R.S. 9:403(B) provides in its entirety:

“An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place or residence of the parent of the child if known to the deponent. The judge shall then by order fix a time and place for the hearing of this matter not less than sixty days after the date of the order. If the parent of the child resides within the state, notice of the hearing shall be served upon the parent as in civil proceedings, at least thirty days prior to the date fixed for hearing which and if the residence of the parent be out of the state, notice of the hearing shall be sent by the clerk of court to the parent by registered mail, if his address be shown in the affidavit, at least thirty days prior to the hearing. If the parent resides out of the state or cannot be served in the state within ten days after the issuance of process, the court shall appoint an attorney at law as curator ad hoc and legal representative of the parent, and notice of the hearing shall be served upon the curator ad hoc. The curator ad hoc shall make a diligent effort to locate the parent. In the event that the curator ad hoc shall fail to locate the parent within twenty days to notify him of the pendency of the proceedings, he shall report his failure to the court whereupon the court shall then direct the department by mail or otherwise to make a diligent effort to locate the parent and inform him of the pendency of the proceedings. The department shall report its findings in writing to the court on or before the date fixed by the court which shall not be less than twenty days from service of notice. The department may ask for a further delay which may be granted for good cause. Proceedings insofar as the parent are concerned shall be had contradictorily with the curator ad hoc and be of full force and legal effect against the parent. The date for the hearing may be continued from time to time by the judge for good cause, upon such notice to parties as he may determine.”

Thus it appears to this writer that while the statute allows for a private individual as affiant, it also contemplates serious State involvement through the Department such that the State must be joined as an indispensible party in such a case, and must provide the court with an investigative report as is now done. This I believe to be the true Legislative intention.

I have no desire to make abandonment proceedings “the gateway to adoption” or unleash a floodgate of litigation. Neither, however, do I desire to do violence to the clear language of R.S. 9:403(B).

      . La.R.S. 9:403(B) provides:
      "B. An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place or residence of the parent of the child if known to the deponent. The judge shall then by order fix a time and place for the hearing of this matter not less than sixty days after the date of the order. If the parent of the child resides within the state, notice of the hearing shall be served upon the parent as in civil proceedings, at least thirty days prior to the date fixed for hearing which and if the residence of the parent be out of state, notice of the hearing shall be sent by the clerk of court to the parent by registered mail, if his address be shown in the affidavit, at least thirty days prior to the hearing. If the parent resides out of the state or cannot be served in the state within ten days after the issuance of process, the court shall appoint an attorney at law as curator ad hoc and legal representative of the parent, and notice of the hearing shall be served upon the curator ad hoc. The curator ad hoc shall make a diligent effort to locate the parent. In the event that the curator ad hoc shall fail to locate the parent within twenty days to notify him of the pendency of the proceedings, he shall report his failure to the court whereupon the court shall then direct the department by mail or otherwise to make a diligent effort to locate the parent and inform him of the pendency of the proceedings. The department shall report its findings in writing to the court on or before the date fixed by the court which shall not be less than twenty days from service of notice. The department may ask for a further delay which may be granted for good cause. Proceedings insofar as the parent are concerned shall be had contradictorily with the curator ad hoc and be of full force and legal effect against the parent. The date of the hearing may be continued from time to time by the judge for good cause, upon such notice to parties as he may determine.

      . In compliance with this court’s internal rule the question of overruling Banks has been submitted to the entire court, a majority of which join in the overruling, with GULOTTA, SCHOTT, GARRISON and CIACCIO, JJ., dissenting. GARRISON, J., assigns reasons.

      . Joyce Banks, the biological mother who was additionally a minor at the time of birth, and Donald Trotter, the biological father, never married. At the time of Conception and at the time of birth, Donald Trotter was married to another woman and they had other issue of the marriage. Under the state of the law as it existed at the time Banks was heard, Theodore was thus an adulterous bastard and as such it was legally impossible for him to be acknowledged or legitimated as to his biological father. C.C. Art. 202. Mr. Trotter was thus legally "as a stranger” to his son. Of course, under the law, Mrs. Trotter was in the same position as a "stranger” to Theodore. The distinctions between legitimate and illegitimate children have since been abolished under our law, but they were in effect at the time of Banks. Neither of the Trotters were "parents” in the legal sense of the word, but were more in the nature of "foster custodians.”

      . This, of course, assumes that the provisional caregiver would, as is the way with human nature, become attached to the child and that the caregiver would not lie on the stand. 1 think that it is counterproductive to the judicial process to place the caregiver/witness in such an untenable position that the only way in which an unreasonable dismissal in a totally proper abandonment case could be avoided is by perjury. A system which encourages perjury in order to avoid an unreasonable result will inevitably result in a total loss of the credibility of the judiciary and the judicial process, as has been the experience with the exclusionary rule.

      . R.S. 9:401(2) provides "'Department' means the Louisiana Department of Health and Human Resources.”


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Mike PAPPAS & Melissa Dauzat.
    No. K-1732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 21, 1984.
    Writ Denied March 23, 1984.
    Harry F. Connick, Dist. Atty., Nancy Sharpe, Asst. Dist. Atty., New Orleans, for relator.
    Joseph Meyer, Jr., New Orleans, Edward S. Bopp, Arabi, for respondent.
    Before BARRY, KLEES and BYRNES, JJ.
   BARRY, Judge.

On July 20, 1983 defendants Mike Pap-pas and Melissa Dauzet were charged in a two count bill of information with attempted possession with intent to distribute methaqualone (quaaludes) and possession with intent to distribute diazepam (Valium). The pills seized from the defendants are white tablets scored “Lemmon 714”. This scoring is the identical scoring that appears on pills which typically contain the substance methaqualone. However, analysis of the pills by the N.O.P.D. Crime Lab revealed that the pills were, in fact, diazep-am, not methaqualone.

On the morning of trial defense counsel filed a motion to sever the counts under C.Cr.P. Art. 495.1 on the basis that the offenses are duplicitous and also under R.S. 14:4. The trial court granted the motion and ordered the State to elect one of the counts to proceed with first. The State objected and now by this writ is seeking reversal of the severance order.

The crux of the State’s argument is that, if the State is forced to try each count separately, it will be unable to prove either charge. The State claims that, if the counts remain severed, defendants will be able to defend on the distribution of diazep-am charge by testifying they intended to possess methaqualone, and will be acquitted on the attempted possession of metha-qualone charge because the tablets actually contain diazepam.

We do not see how severance of the counts will affect the admissibility or the probative value of the evidence necessary to support each charge.

Regardless of whether the counts are tried separately or jointly, it appears the charge of possession with intent to distribute diazepam (R.S. 40:969) will not stand because the evidence will show defendants did not “knowingly or intentionally” possess diazepam, as required by R.S. 40:969. On the other hand, irrespective of whether or not the counts are tried together, evidence that the pills actually contained dia-zepam would not necessarily preclude a conviction for attempted possession with intent to distribute methaqualone. (R.S. 40:967).

R.S. 14:27 specifies the elements necessary to constitute a crime of “attempt”:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

It is the intent to commit the crime, not the possibility of success, that determines whether the act or omission constitutes the crime of attempt. As the Reporter’s Comments to R.S. 14:27 note:

It is essential to an attempt that there be a specific intent to commit the crime. The test appears to be — would defendant have been guilty of a crime if his intention had been fully consummated? Gross negligence or constructive intent (as in the felony murder doctrine) will not suffice. The requisite intent need not be proved by direct evidence and may be inferred from the circumstances. For example, an intent to kill may be inferred from the use of a deadly weapon.
This section adopts the Canadian view that it is immaterial whether there is an actual possibility of committing the intended offense. An attempted homicide may fail because the gun used is defective or the poison used is not sufficiently deadly. An attempted rape may fail because the perpetrator is impotent; or an attempted theft may fail because the cash drawer looted or the pocket picked is empty. Where such conditions preventing the consummation of the crime are unknown to the offender, they do not prevent his being liable for an attempt. The essential elements are an actual specific intent to commit the offense, and an overt act directed toward that end. The subjective mental element is all-important in this offense. Of course, it will be impossible to entertain a specific intent to commit an offense unless the offender has an apparent (to him) ability to consummate the crime.

Thus, we fail to see that the State will be prejudiced by the severance order.

Under C.Cr.P. Art. 495.1 the trial judge is vested with discretion to sever counts in a bill of information if it appears the defendant may be prejudiced by joinder of the counts. The trial- judge may have believed the alternative charges in this case would be confusing to the jury and/or prejudicial to the defendants. We find no abuse of discretion in his granting defendants’ motion to sever.

ACCORDINGLY, the State’s application is denied.

WRIT DENIED.

      . LSA-R.S. 14:4:
      Prosecution may proceed under either provision, in the discretion of the district attorney, whenever an offender's conduct is:
      (1) Criminal according to a general article of this Code or Section of this chapter of the Revised Statutes and also according to a special article of this Code or Section of this Chapter of the Revised Statutes; or
      (2) Criminal according to an article of the Code or Section of this Chapter of the Revised Statutes and also according to some other provision of the Revised Statutes, some special statute, or some constitutional provision.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Thomas J. RATIGAN, Defendant-Appellant.
    No. CR83-410.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Elvin C. Fontenot, Jr., Tillman & Fonten-ot, Leesville, for defendant-appellant.
    William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   DOUCET, Judge.

Defendant, Thomas J. Ratigan, plead guilty to simple burglary, unlawful flight from an officer and speeding 100 m.p.h. in a 55 m.p.h. zone. Thereafter, a pre-sen-tence report was ordered. Subsequently defendant, age 18 at the time, was sentenced to six years at hard labor on the simple burglary conviction. He now appeals his burglary sentence as excessive.

As aforementioned, the defendant is young. He has no prior adult criminal record, however, he was adjudged a juvenile delinquent on two prior occasions. The facts leading to the present sentence are as follows: The defendant broke into a relative’s business and stole a car. He was subsequently stopped by police, however, as the officer approached the vehicle, defendant fled in what became a chase through three parishes before apprehension was effected.

The wisdom of incarcerating a youth to imprisonment for a substantial term, with its accompanying consequences, is not for us to decide providing such a sentence does not contravene constitutional provisions. The legislature has afforded offenders below the age of majority certain leniency due to their lack of maturity. Thereafter, the legislature has seen fit to leave such factors to the discretion of the sentencing judge and youthfulness of the offender is certainly a factor which should be accorded weight pursuant to La.C.Cr. Pro. Art. 893.1.

A sentence is excessive if the penalty is grossly disproportionate to the crime. State v. Pearson, 425 So.2d 704 (La.1982); State v. Goode, 380 So.2d 1361 (La.1980). In determining whether the penalty is grossly disproportionate to the offense, the appellate court must “consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Pearson, supra; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Beavers, 382 So.2d 943 (La.1980). The trial judge has wide discretion in imposing sentences within statutory limits. Absent a manifest abuse of that discretion, the sentence imposed by the trial court will not be set aside as excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983).

The crime of simple burglary carries a penalty of a fine up to $2,000.00 and/or imprisonment of not more than twelve years with or without hard labor. La.R.S. 14:62. Although the defendant is a youthful offender, the trial judge undoubtedly took this factor into account when imposing sentence. It cannot be said that he abused his discretion or that the sentence is unconstitutionally disproportionate to the crime. Accordingly, the defendant's sentence is affirmed.

AFFIRMED.


author: STOKER, Judge.

text:
    SUCCESSION OF Woodrow WILSON, Sr., Plaintiff-Appellant, v. Willie E. WILSON, et al., Defendant-Appellee.
    No. 83-453.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Griffing & Johnson, George Griffing, Jonesville, for plaintiff-appellant.
    Jack F. Owens, Jr., of Reeves & Owens, Harrisonburg, Louis L. Vogt, Jonesville, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This case comes to us as an appeal from a judgment on a rule to show cause which (1) ordered the cancellation of plaintiffs’ Notice of Lis Pendens filed in the records of Catahoula Parish, Louisiana, and (2) ordered that the defendants and movers in the rule be dismissed from the lawsuit with prejudice.

The plaintiffs and appellants are the Succession of Woodrow Wilson, Sr., represented by the succession administratrix, Theresa Wilson Royer, and Theresa Wilson Roy-er in her individual capacity as a child and heir of Woodrow Wilson, Sr. The appel-lees, the movers in the rule to show cause, are Rose Major Wilson, Katie Major Wilson, Patronella Major, and Agnes Major Johnson.

The facts of the case were not developed by a full scale trial and only minimum facts may be determined from the pleadings and the hearing on the rule to show cause. The trial judge did not hand down written reasons for judgment and at the conclusion of the hearing announced his decision without particularizing his reasons. Under the circumstances we must develop the facts from the record and the comments and arguments of counsel during the hearing on the rule to show cause. The following resume recites the facts as we understand them and to some extent is based on the pleadings. As we ultimately base our ruling on noticing an absence of a cause of action against the appellees under C.C.P. art. 927, we may draw upon the facts set forth in the plaintiffs’ petition.

FACTS

This litigation involves immovable property described in plaintiffs’ petition as: “All the NW/4 lying South of Deer Creek; the N/2 of the SW/4; and a 22 acre strip off the West side of the NE/4 of Section 4, Township 10 North, Range 7 East, Catahoula Parish, Louisiana.” The petition alleges that defendants Willie E. Wilson and Emma Jean Wilson sold the property to defendants Rose Major Wilson, Katie Major Brown, Patronella Major and Agnes Major Johnson. We will refer to the latte'r named defendants as the “Majors.” The sale to the Majors took place on June 27, 1981. The petition alleges that this sale was recorded in COB 120 at page 629 of the records of Catahoula Parish. Willie E. Wilson and Emma Jean Wilson acquired the property from Woodrow Wilson, Sr., husband of Julia Mae Wilson, through a credit sale dated March 24, 1981. Although this sale recites that the sale is a credit sale, and recites that the purchase price of $15,000 is represented by a promissory note, it does not appear that the property was mortgaged in the sale instrument to secure the payment of the note. Nevertheless, the sale appears to have been recorded in the mortgage records of Catahou-la Parish in MOB 109 at page 215, as well as in the conveyance records at COB 119 at page 651.

Plaintiffs seek through this action to have both of the sales mentioned above set aside, voided and canceled on the records of Catahoula Parish. Copies of both of these instruments of sale are attached to plaintiffs’ petition as exhibits A and B. Plaintiffs urge in their petition that the initial sale (the sale from Woodrow Wilson, Sr. to Willie E. Wilson and Emma Jean Wilson) was invalid or voidable for a number of reasons including fraud, misrepresentation, nonpayment of the purchase price, lesion, nullity of donation, and simulation. Plaintiffs also assert that collation is due from Willie E. Wilson. The judgment appealed from affects a dismissal of the Majors only; it does not affect any issues between plaintiffs and Willie E. Wilson and Emma Jean Wilson which might otherwise remain such as the matter of collation.

The petition alleges that Woodrow Wilson, Sr. and Julia Mae Crossley Wilson had ten children. Petitioner Theresa Wilson Royer is one of the children and defendant Willie E. Wilson is another. Many of the representations and claims set forth in the petition are based on the family relationship between Woodrow Wilson, Sr. and his vendee, Willie E. Wilson, and the remaining children.

The Notice of Lis Pendens and the plaintiffs’ initial suit was filed on December 11, 1981 which, according to the allegations of the petition itself, was after both of the sales referred to above had been recorded in the records of Catahoula Parish. Under the circumstances the Notice of Lis Pendens could not affect the sale to the Majors. Indeed, the purpose of the notice as set forth in LSA-C.C.P. art. 3751 is to “constitute notice to a third party not a party” to the action which has been brought. Karst v. Fryar, 430 So.2d 318 (La.App. 3rd Cir.1983). Nevertheless, if plaintiffs’ petition alleged any facts which might, if proved, result in voiding and setting aside the sale to the Majors, it would appear that plaintiffs would be entitled to have their Notice of Lis Pendens remain of record.

In view of what we have said, both as to the cancellation of the Notice of Lis Pen-dens and the dismissal of the Majors from the suit, the issue in this case turns on whether the plaintiffs’ petition sets forth a cause of action against the Majors.

At this point we digress to state that one of the complaints made in brief on behalf of plaintiffs is that a rule to show cause may not be used as the basis for a dismissal of an action, particularly where, as here, the rule sets forth no reasons for dismissing the action as to the Majors. The appellants urge that the Majors filed neither an exception of no cause of action nor an exception of no right of action. Appellants also raise the objection that the rule to show cause was not signed by defendants or their attorney. (The order for plaintiffs to show cause was signed by the judge following a recital that the court’s order was made on motion of the defendants.) The rule to show cause was no doubt quite proper to bring up the issue of cancellation of the Notice of Lis Pendens.

There are two reasons why appellants’ complaint regarding the dismissal of their action on the rule is not well founded. First, it is settled that courts look through the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding. Griffith v. Roy, 263 La. 712, 269 So.2d 217 (La.1972) and Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362 (La.App. 3rd Cir.1983), writ denied 435 So.2d 426, 440 (La.1983). We consider that the rule to show cause in this case, insofar as it relates to the dismissal order, was in reality an exception of no cause of action. A second point is that the absence of a cause of action may be noticed by either the trial or appellate court on its own motion. LSA-C.C.P. art. 927.

Particularly under the authority of C.C.P. art. 927, the issue in this case comes down to whether plaintiffs’ petition states a cause of action against the Majors.

Inasmuch as the sale to the Majors was recorded in the public records of Cata-houla Parish prior to the filing of plaintiffs’ suit and Notice of Lis Pendens, none of the matters alleged in plaintiffs’ petition could affect the Majors. They are third parties who have relied on the public records. LSA-C.C.P. art. 3751; McDuffie v. Walker, 125 La. 152, 51 So. 100 (La.1909), and LeBoeuf v. Malbrough, 188 So.2d 196 (La.App. 1st Cir.1966). No discussion of the well established principles enunciated in these cases is necessary.

We have carefully considered the plaintiffs’ petition as supplemented and amended and can discover no allegations under which the title acquired by the Majors can be attacked. Paragraph 13 of the original petition sets forth the following allegations:

“Petitioner shows that the above named vendees were and still are fully cognizant of the questionable circumstances surrounding the acquisition of the property by Willie E. Wilson and Emma Jean Wilson from Woodrow Wilson, Sr.”

Assuming that the Majors were cognizant of all that plaintiffs allege they were, the allegation does not amount to a charge of fraud on the part of the Majors and does not charge them with collusion. The following statement from LeBoeuf v. Malbrough, supra, covers the subject:

“The jurisprudence ... has firmly established the rule that in the absence of allegation and proof of fraud or collusion, the good faith of a purchaser can be affected only by what appears on the public record. The landmark case so holding is McDuffie v. Walker, 125 La. 152, 51 So. 100. The McDuffie case has been followed on innumerable occasions including the fairly recent decision of this court, namely, Burt v. Valois, La.App., 144 So.2d 196. In substance McDuffie v. Walker, supra, holds that despite the purchaser’s personal knowledge of defects in the vendor’s title, the purchaser is nevertheless in good faith so long as there exists nothing on the face of the public record sufficient to put him on notice of an adverse claim.”

Because we conclude that the Majors’ title is good, plaintiffs’ sole remedy, if they are entitled to any, is against defendants Willie E. Wilson and Emma Jean Wilson personally. Plaintiffs’ rights do not extend to the immovable property in question. Under the circumstances the Majors were entitled to the relief granted by the judgment appealed from, namely, to be dismissed from the plaintiffs’ action and to have canceled the Notice of Lis Pendens affecting their property. Therefore, we affirm the trial court’s judgment treating the pleading which brought the matter to a hearing insofar as it affects the motion to dismiss as an exception of no cause of action.

Prior to considering the rule discussed above the trial court had sustained an exception of prescription. This exception was leveled at plaintiffs’ allegation of incapacity of Woodrow Wilson, Sr. at the time he sold his property. We regard the sustaining of that exception of prescription as affecting the action only insofar as it was based on the alleged incapacity. In fact, the exception was more in the nature of a motion to strike plaintiffs’ allegations concerning incapacity based on prescription, and that is what the trial court’s judgment ordered when it sustained the exception.

For the reasons assigned, we affirm the judgment of the trial court appealed from. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Chester EWING, Plaintiff-Appellee, v. TREND DRILLING COMPANY, et al., Defendants-Appellants.
    No. 83-458.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Dutel & Dutel, Arthur J. O’Keefe, Me-tairie, for defendants-appellants.
    Cline, Miller & Richard, Larry T. Richard, Rayne, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a worker’s compensation case in which plaintiff seeks on-the-job benefits for a disabling lower back injury allegedly sustained during the course and scope of his employment with Trend Drilling Company.

Plaintiff originally instituted suit against Trend Drilling Company and its alleged compensation insurer, Mid-Continent Underwriters. Mid-Continent Underwriters was later dismissed on a motion for summary judgment; plaintiff had mistakenly assumed Mid-Continent to be the compensation insurer, when in fact it was an insurance broker which merely handled claims for the actual insurer. Subsequently plaintiff was granted leave to amend his petition to name Northwest Insurance Company as the proper party defendant.

After trial of the matter, the judge below, in a written opinion, concluded that plaintiff did in fact suffer a work-related injury which rendered plaintiff totally and permanently disabled, and accordingly rendered judgment in favor of the plaintiff and against Trend Drilling Company and Northwest Insurance Company. Defendants have appealed this adverse judgment.

The issues presented on appeal are: (1) Did plaihtiff carry his burden in proving that an accident did occur during the course and scope of his employment; and (2) Was the trial judge correct in finding plaintiff’s injury to be of a total and permanent nature?

On or about September 9,1981, the plaintiff was employed as a maintenance hand for Trend Drilling Company. On that date Mr. Ewing, pursuant to orders given to him by his superiors, was attempting to repair a water pump. This pump was located on top of a six or seven foot tank. Plaintiff claims that he was climbing up a ladder to get to the pump when the ladder slipped causing him to fall and injure his back.

Mr. Ewing testified that the pain he felt at the time of the fall subsided; however, the next day it began hurting and continued to get worse. The plaintiff further stated that the day after the accident he informed his supervisor of the injury and was instructed to fill out an accident report but none could be found. There was testimony from other drilling company employees that they had been informed of the accident and of Mr. Ewing’s attempt to report it.

Following the accident Mr. Ewing was given a job as a driller. This job was not as strenuous as his earlier job but in spite of this Mr. Ewing was in constant pain. The plaintiff continued working for Trend Drilling in this capacity until he was laid off on November 10, 1981. Prior to his termination the plaintiff had seen Dr. C.C. Matirne in connection with his back problem. Although Doctor Matirne determined that plaintiff suffered from chronic back pain, Mr. Ewing, in order to support his family, went to work for Explorer Drilling Company as a driller. His employment with Explorer continued until January 14, 1982. Suit was subsequently filed on behalf of Mr. Ewing seeking compensation benefits in April of 1982.

Defendants’ version of this occurrence is in conflict with plaintiff’s testimony. Defendants claim that they first learned of plaintiff’s accident in October of 1981. At that time plaintiff was informed by one of his supervisors that his employment with Trend Drilling Company would be terminated. Carlton Simon, the tool pusher, testified-that plaintiff had not reported the accident until plaintiff found out he was going to be laid off. Ergo, defendants’ contention is that the accident and threat of suit was simply a ploy to prevent his termination from Trend Drilling Company. Plaintiff claimed that upon notice of termination he merely reminded his employer of the earlier injury and of their obligation for his medical expenses regardless of his continued employment.

It is clear that there were no eye witnesses to plaintiff’s alleged accident, other than the plaintiff himself. Of course as pointed out by this Court in Clement v. Fidelity & Casualty Company of New York, 220 So.2d 575 (La.App. 3rd Cir.1969), “it is a sound principle within our jurisprudence that an accident can be established by the testimony of the claimant alone, if his statements are supported by the surrounding circumstances, and there is nothing to discredit his testimony as to how the accident occurred.”

“Thus credibility of the plaintiff plays a crucial role in this decision making process. The trial judge is in the best position to make such a decision rather than an Appellate Court from a hard, cold record.” Breaux v. Great Atlantic & Pacific Tea Company, Inc., 302 So.2d 672 (La.App. 3rd Cir.1974), writ denied, 305 So.2d 540 (La.1975). In this regard the trial judge made the following finding in his well-reasoned opinion:

“... the Court finds that plaintiff did in fact suffer a work-related injury while employed at TREND DRILLING COMPANY; more specifically, an injury caused by a fall from a make-shift ladder, which the plaintiff was using to repair a pump. The Court also finds that plaintiff tried to comply with his obligations under the Workman Compensation statute by attempting to fill out an accident report; but- that no forms were available; and by notifying his employer, Bill Lawrence, of the accident.”

From the foregoing we believe the surrounding circumstances do corroborate the testimony of the plaintiff and conclude that the preponderance of the evidence is to the effect that plaintiff did sustain a work-related injury on September 9, 1981.

Next, defendant contends that the trial judge erred in finding plaintiff’s injury to be of a total and permanent nature.

When a workman cannot perform the substantial duties attendant to any gainful employment or can only perform them in substantial pain as a result of work-connected injury, such workman is totally and permanently disabled for workmen’s compensation purposes. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Bordelon v. Ranger Insurance Company, 413 So.2d 962 (La.App. 3rd Cir.1982); Hamilton v. New Amsterdam Casualty Company, 208 So.2d 158 (La.App. 4th Cir.1968).

The trial judge in ruling on this issue stated:

“Based upon Dr. Harmon’s expertise, and finding that he had greater opportunity to observe, diagnose and treat the plaintiff, the Court finds Dr. Harmon to be the most credible expert and accept his findings. Taking Dr. Harmon’s testimony in conjunction with the testimony of the plaintiff and Dr. Deese; the Court finds that plaintiff was suffering from a pre-existing arterior spurring at L-4 and L-5 with degeneration and narrowing at L-5 S-l, which work related September 6th, 1981 accident .aggravated this condition by causing a rupture or a disruption of the disc at L-5 S-l. The Court finds this ruptured disc injury to be of a permanent, total nature within the meaning of the Workmen Compensation Statutes.”

Once the trial court has made factual findings as to disability and the length thereof, these determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. Bordelon v. Ranger Insurance Company, supra; Hookfin v. Schwegmann Bros. Giant Super Markets, Inc., 398 So.2d 1218 (La.App. 4th Cir.1981).

We have carefully reviewed the medical evidence and lay testimony. While there is some conflict in the testimony, we cannot say that reversible error was committed by the trial court. Further, the defendants herein have the option of reopening this case according to law for later evaluation of plaintiffs physical condition. Thus we feel we would be in error to reverse the trial court’s judgment.

Lastly, the plaintiff in his brief asks us to amend the trial court’s judgment to award attorney’s fees and penalties because the defendants allegedly arbitrarily refused to pay benefits. However, because the plaintiff neither appealed nor timely answered the defendant’s appeal that question is not properly before us. La.C.C.P. Art. 2183; Knott v. Welltech, Inc., 428 So.2d 1221 (La.App. 3rd Cir.1983); Hennen v. Louisiana Highway Commission, 178 So. 654 (La.App. 2nd Cir.1938).

For the above and foregoing reasons the judgment of the trial court is affirmed. Defendants are to pay all costs of this appeal.

AFFIRMED.


author: FORET, Judge.

text:
    Mamie Dalgo JUNEAU, et al., Plaintiffs-Appellants, v. Carolyn Barr ALEXANDER, et al., Defendants-Appellees.
    No. 83-459.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Robert L. Beck, Jr., of Rivers and Beck, Alexandria, for plaintiffs-appellants.
    Jerold Edward Knoll and Clark C. Roy, Marksville, for defendants-appellees.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

Plaintiffs filed suit asking that they be recognized as the heirs of Edgar Dalgo and placed in possession of certain properties in Avoyelles Parish which Edgar Dalgo owned at the time of his death. Plaintiffs claimed their interest in Edgar Dalgo’s succession through their ascendant, Louis Edward Dalgo, who they alleged was a legitimate son of Edgar Dalgo and Emma Harri-ford. Made defendants were the heirs and successors in title of Edgar Dalgo’s legitimate children who had been placed in possession of his property. Defendants filed an exception of no right of action and exceptions of ten years and two years acquisitive prescription. The court sustained defendants’ exception of no right of action, finding that Louis Edward Dalgo, plaintiffs’ ancestor, was illegitimate, and accordingly, that plaintiffs had no right to participate in Edgar Dalgo’s succession. The court also sustained defendants’ exceptions of ten years and two years acquisitive prescription.

After careful review of the record, we find no error in the court’s determination that plaintiffs’ ascendant was illegitimate. As a result, plaintiffs have no right to participate in Edgar Dalgo’s succession. We affirm the trial court’s dismissal of plaintiffs’ action on that basis and refrain from any discussion of the other issues raised by appellants.

FACTS

Emma Harriford lived with a man named Shelby Dozier and had two children with him. After she and Dozier parted, she lived alone for four or five years. She then began living with Edgar Dalgo. She had two children with him: Ella and Louis Edward, the ancestor through whom plaintiffs claim their right to Edgar Dalgo’s succession. From the record, it is unclear exactly how long Emma Harriford and Edgar Dal-go lived together. The indication is that it was a relatively short period of time since Emma Harriford subsequently lived with one John McGinney and had two more children.

After Edgar Dalgo and Emma Harriford went their separate ways, Edgar Dalgo married Denise Juneau, with whom he had three children. Edgar Dalgo died in 1956. At the time of his death, he owned a tract of land in Avoyelles Parish that he had acquired by thirty years acquisitive prescription. In 1970, Denise Juneau died.

The succession of Edgar Dalgo was opened in 1970. The judgment of possession recognized the children of his marriage with Denise Juneau as his sole heirs and placed them in possession of his property. The judgment also recognized Denise Juneau’s interest as the surviving spouse in community. No mention was made of the plaintiffs or their ancestor, Louis Edward Dalgo, in these succession proceedings. As a result of a series of transactions, the property in which plaintiffs claim an interest became vested in Jessie Dalgo and Hubert Barr. At the time of filing of plaintiffs’ action, both Jessie Dalgo and Hubert Barr were deceased, and their heirs had taken possession of the disputed property.

PRESUMPTION OP MARRIAGE AND LEGITIMACY

The trial court determined that Louis Edward Dalgo was illegitimate. We find no error in that determination.

Plaintiffs maintain that under the circumstances of this case, a presumption of marriage and, therefore, legitimacy, should arise. We disagree. Although the Supreme Court of this State has indicated' that a presumption of marriage and legitimacy may arise in certain cases; In Re Gray’s Succession, 201 La. 121, 9 So.2d 481 (1942); Succession of Anderson, 176 La. 66, 145 So. 270 (1932); John Blasini, et al. v. Succession of Silvestre Blasini, 30 La.Ann. 1388; the present case is distinguishable on the facts. In all three cases cited above, there are three factors which the Court considered important in establishing a presumption of marriage and legitimacy: first, the couple lived together for a considerable length of time and, in all cases, until one of the presumed spouses died; secondly, during and after the presumed marriages, the surviving spouse treated the children as his legitimate children, educating and maintaining them; finally, in all three cases, it was clear from the evidence that the public at large considered the couple as husband and wife.

None of these factors are found in the present ease. The evidence shows that Emma Harriford and Edgar Dalgo were together for a relatively short period of time. There is no evidence that Edgar Dalgo treated Edward Louis as his legitimate child after he and Emma Harriford separated. Finally, in the present case, the evidence adduced at trial did not indicate that the public at large considered Emma Harriford and Edgar Dalgo as husband and wife. The uncertainty of plaintiffs’ witnesses as to whether they were married indicates that there was considerable doubt in this regard. We conclude that no presumption of marriage and legitimacy was established by plaintiffs.

Succession of Marinoni, 183 La. 776, 164 So. 797 (1935), cited by plaintiffs, is inapplicable to the present case since it concerned a putative spouse. In Cunningham v. Jordan Drilling Co., 19 La.App. 40, 138 So. 689 (2 Cir.1932), also cited by plaintiffs, although there was a presumption of marriage, the court considered it to be very weak, and it was overcome by contravening evidence. In Cunningham, the court found it significant that the couple lived together for only a short period of time and then separated without raising the children that resulted from their relationship. In this respect, that case resembles the one before this Court. The importance of the length and constancy of the relationship to the establishment of the presumption of marriage can be seen in another case cited by plaintiffs, Succession of Leduc, 153 So.2d 581 (La.App. 4 Cir.1963). In that case, the couple had lived together for seventeen years until one of them died. Additionally, in Leduc, the court found, and gave great weight to the fact, that the wife’s death certificate stated that she was the wife of Stephen I. Leduc, and further that Leduc buried her in his cemetery plot identified by a tombstone with the iiiseription, “Sarah Bourgeois Le-duc”. Finally, the court gave additional weight to the fact that when Leduc acquired the real estate involved in the succession, he stated under oath in both notarial acts of purchase that he was married to Sarah Bourgeois, fixing the date of marriage as “approximately twelve years ago”. In all of these respects, Leduc is distinguishable from the present case.

In the present case, no certificate of marriage nor record of divorce was introduced into evidence. The failure to introduce a record of divorce is particularly significant. Edgar Dalgo was married subsequent to his having lived with Emma Harriford. Emma Harriford and Edgar Dalgo had lived together in Avoyelles Parish. After they separated, they continued to live in the same parish. The failure to introduce some record of a divorce between Emma Harriford and Edgar Dalgo tends to show that the two were never married. Finally, a certificate of baptism introduced by plaintiffs showed Louis Edward’s parents as Edgar Dalgo and Emma Harriford rather than Emma Harriford Dalgo.

For the above reasons, we agree with the trial court’s determination that plaintiffs’ ancestor, Louis Edward Dalgo, was illegitimate.

THE RIGHTS OF AN ILLEGITIMATE TO INHERIT

Plaintiffs’ claim to the succession of Edgar Dalgo depends on the inheritance rights of their illegitimate ancestor. At the time of Edgar Dalgo’s death in 1956, LSA-C.C. Article 919 denied inheritance rights to illegitimates in the succession of a father who was survived by other relatives. If Article 919 is applicable to the present case, plaintiffs have no right to participate in Edgar Dalgo’s succession since Edgar Dalgo left behind legitimate descendants. Although the Louisiana Supreme Court has found Article 919 unconstitutional, Succession of Brown, 388 So.2d 1151 (La.1980), that decision was only given retroactive application to January 1, 1975. Succession of Clivens, 426 So.2d 585 (La.1982). Since Edgar Dalgo’s death occurred before this date, Brown is not applicable. Article 919 is applicable and plaintiffs have no right to participate in Edgar Dalgo’s succession.

Accordingly, the trial court’s ruling sustaining defendants’ exception of no right of action is affirmed.

DECREE

For the aforementioned reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Mamie Dalgo Juneau, Lucille Dalgo Guillot, Joseph Dalgo, Sanvos Peter Dalgo, Aza Mae Dal-go Badeaux, Virginia Dalgo Bryant, Ollie Dalgo Williams, Milton J. Dalgo, Jeanette Dalgo Mills, Douglas Dalgo, Devan Dalgo, Ronald Dalgo, Wiltz Dalgo, and Marshall Dalgo.

      . Carolyn Barr Alexander, Hubert Barry Barr, Hazel Baudin Barr, Irene Dalgo Miller, and Marie Dalgo Jenke.

      . For the same reasons, Baker v. Williams, 176 So.2d 766 (La.App. 3 Cir.1965), is also distinguishable.


author: GUIDRY, Judge.

text:
    Larry N. DICKERSON, Plaintiff-Appellant, v. BEGNAUD MOTORS, INC. and General Motors Corp., Defendants-Appellees.
    No. 83-479.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Writ Denied April 23, 1984.

      Charles C. Dickerson, Carthage, Tex., C. Clifton Dickerson, III, Lockport, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Keith M. Borne, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This redhibitory action arises out of the purchase by Larry N. Dickerson from Beg-naud Motors (hereafter Begnaud) of a 1980 Oldsmobile Toronado, manufactured by General Motors Corporation (hereafter GM). Mr. Dickerson brought this suit on November 25, 1980 against Begnaud and GM alleging that a problem in the steering mechanism of the vehicle constituted a red-hibitory defect. In his suit, he seeks rescission, damages and attorney’s fees. By amended petition, plaintiff also asserts a cause of action against G.M. under 15 U.S. C.A. 2310(d) for breach of warranty. After trial, the court gave judgment in favor of both defendants, dismissing plaintiffs suit with prejudice. Plaintiff appeals. Defendants neither appeal nor answer the appeal.

FACTS

On April 11, 1980, Mr. Dickerson, after a test drive, purchased the Toronado from Begnaud. At that time, it was agreed that certain apparent or known defects would be corrected at a later date. Subsequently, plaintiff discovered a latent problem with the steering mechanism which manifested itself on right hand turns. The problem eventually was determined to be a manufacturing defect in the worm gear. It is not disputed that this defect existed at the time of purchase.

On the day after the sale, plaintiff drove the new Toronado to Carthage, Texas, a trip of approximately 300 miles. On May 13, 1980, plaintiff brought the vehicle to Begnaud’s for the formerly agreed upon minor repairs. It was disputed at trial whether or not he, at this time, also informed Begnaud of the problem with the steering mechanism. On June 4, 1980, plaintiff again brought the car to Beg-naud’s for certain repairs. It was also disputed whether or not plaintiff, at that time, informed Begnaud’s of the problem with the steering mechanism. On July 17, 1980, plaintiff returned the Toronado to Begnaud’s service department. This time the major complaint was the steering mechanism. The mileage on the car at that time was 2,087 miles. On August 1,1980, plaintiff was provided with a 1979 Delta 88 as a replacement car which he used until August 15,1980. On August 5,1980, plaintiff sent a letter to GM and Begnaud advising them that if the problem with the steering mechanism was not remedied in 15 days, he would demand rescission. Begnaud contacted plaintiff on August 11, 1980 to advise him that it was believed that the defect had been remedied. On August 13, 1980, plaintiff went to Begnaud’s to test drive the Toronado but did not do so when Beg-naud’s refused to sign a hold harmless agreement prepared by plaintiff. Plaintiff returned on August 18, 1980 and requested that Robert Bernard, Sr., Begnaud’s general manager, drive the Toronado with plaintiff riding along as a passenger. Mr. Bernard did so and then acknowledged that the problem had not been repaired. That same day, Mr. Bernard called Michael Conner, the OIdsmóbile district service manager, explaining the problem and asking for assistance. Mr. Conner responded that he would be in within a week to examine the car. He then called Mr. Dickerson and so advised him. By letter dated August 22, 1980, Mr. Dickerson, through counsel, made formal demand on Begnaud for rescission. The return receipt on the letter was dated August 27, 1980. By letter dated September 3, 1980, Begnaud, through counsel, advised plaintiff that the vehicle was repaired and ready for delivery. This suit was filed on November 25, 1980. At the time of trial, the vehicle remained in the custody of Begnaud.

LIABILITY OF BEGNAUD IN REDHIBITION

The statutory basis for the action in red-hibition is Civil Code Art. 2520, which provides:

§ 1 — Of the Vices of the Thing Sold, Which Give Occasion for the Redhi-bitory Action
Art. 2520. Redhibition, definition. Red-hibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.

To prevail in an action for redhibition, the vendee must establish that the defect existed at the time of purchase, but was neither known or apparent to him. He must also prove that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the vendee would not have made the purchase had he known of the defect.

Furthermore, when a seller is in good faith, he must be given an opportunity to repair the thing before a redhibitory action can be brought, whereas a bad faith seller has no corresponding right. LSA-C.C. Arts. 2531 and 2545; Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3rd Cir.1976); Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980).

The trial judge, in written reasons for judgment, determined that the vehicle in question contained a latent defect at the time of its purchase, which determination is fully supported by the record. However, the trial judge also determined that the defect was not major and was not such a defect as would support rescission of the sale. The trial court finally concluded that the defect was fully corrected on or about August 18, 1980, prior to the time this suit was filed. For the reasons which follow, we fully agree with these conclusions.

Plaintiff made no showing of bad faith on the part of Begnaud, whose primary duty therefore is only to repair, remedy or correct the vice as provided in LSA-C.C. Art. 2531. This article also provides a secondary duty to restore the purchase price and reimburse expenses when the good faith seller is unable to repair, remedy or correct the vice. Article 2531 fails to set forth the terms and conditions of the good faith vendor’s right to repair, leaving open the question: When does the vendor’s right to repair end and the vendee’s right to rescission begin?

We conclude that the statute envisions that a reasonable opportunity be afforded to the vendor to repair the defect. As we stated in Jordan v. LeBlanc and Broussard Ford, Inc., supra:

“Until the legislature provides specific rules concerning the terms and conditions of the right to repair, there is no alternative in the judiciary but to decide each case on its peculiar circumstances with due regard being given to the competing interests of the consuming public and the retailers and manufacturers.”

Jordan v. LeBlanc and Broussard Ford, Inc., supra, at 538.

Plaintiff improperly relies on Reech v. Coco, 223 La. 346, 65 So.2d 790 (1953) and Cain v. Rapides Dodge, Inc., 207 So.2d 918 (La.App. 3rd Cir.1968) writ refused, 252 La. 163, 210 So.2d 51 (1968), for the proposition that the repair of an automobile subsequent to a tender does not affect a plaintiff’s right to rescission. These cases predate the amendment to LSA-C.C. Art. 2531 which, as now amended, allows a good faith vendor the opportunity to repair. Under the new article, any tender by plaintiff for rescission before a reasonable opportunity to repair has been afforded the good faith vendor is premature as plaintiff’s right to return of the purchase price does not arise until such an opportunity has been afforded his vendor. The question then becomes whether the repair of the defect is made within a reasonable time under the circumstances, balancing the interests of the buyer against those of the seller, and not whether the repair is made subsequent to a tender by plaintiff for rescission.

The question of what constitutes a reasonable opportunity is a question for the finder of fact. It is suggested in a law review article appearing in 49 TLR 484 at 488 that the following factors are relevant to this inquiry:

“In protecting the buyer’s interests, such considerations as whether or not the buyer has been furnished with a substitute for the defective item while it is being repaired30 and the extent to which the buyer’s lifestyle is disrupted by the unavailability of the thing, are important. With respect to the interest of the seller, the nature of the defect, i.e., how difficult it is to remedy, and the number of unsuccessful attempts to repair are relevant factors.” (footnote omitted)

In the present case, the trial judge, in written reasons for judgment, found that the defect was corrected within a reasonable time. We find no manifest error in this conclusion. As noted by the trial judge, “Begnaud offered to lend plaintiff substitute transportation, and in fact plaintiff did use such transportation for some of the time that the vehicle was being repaired.” Plaintiff returned the substitute vehicle of his own volition prior to completion of the repairs by Begnaud.

The record also supports the trial judge’s conclusion that the defect was slight. Although the defect once diagnosed was easily remedied, the evidence indicates the problem was difficult to diagnose and could only be done by a trial and error method. Under the above circumstances, Begnaud, as a good faith seller, fulfilled its obligation to repair the defect within a reasonable time.

LIABILITY OP GM

GM, as the manufacturer of the automobile, is conclusively presumed to know of the defect. Rey v. Cuccia, 298 So.2d 840 (La.1974). Thus, GM is considered a bad faith seller and falls within the ambit of the following Civil Code provision:

“The seller who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.”

LSA-C.C. Art. 2545.

As aforestated, Article 2545 provides no corresponding right of repair, as found in Article 2531, governing the liability of the good faith seller. Tender and opportunity to repair is unnecessary as a prerequisite to a redhibition action against a manufacturer. Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973); Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir.1977); Associates Financial Services Co. v. Ryan, supra.

As aforestated, plaintiff proved, and the trial judge concluded, that the vehicle in question contained a latent defect at the time of its purchase. However, the trial judge further determined that the defect was not major and would not support a rescission of the sale.

In Prince v. Paretti, supra, which was partially overruled by the amendment to Civil Code Art. 2531, but remains the law as it pertains to bad faith sellers, the court stated:

“The notion that easily repaired defects do not support redhibition is not found in our statutory law. C.C. 2520, et seq. Neither Domat nor Pothier mentioned ‘ease of repair’ as being relevant to the determination of whether a defect will support redhibition. Domat wrote rather that a judge must “discern by the quality of the defects whether the sale ought to be dissolved.”6
Thus, to prevail in an action for redhi-bition, a purchaser need not prove that the alleged defect is difficult to repair.7 The purchaser need only prove a defect in the thing sold which “renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” C.C. 2520.”
7 See, J.B. Beaird Co., Inc. v. Burris Bros., Ltd., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbott Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924). In certain cases, "ease of repair" might be relevant to a judge's decision to decree merely a reduction in price, rather than redhi-bition. C.C. 2541 and 2543.

Prince, supra, at 116; other footnotes omitted.

Thus, although ease of repair is not of itself a defense against redhibition, it is germane to the issue of whether the sale ought to be dissolved.

In the present case, the trial judge concluded that the quality of the defect was not such as to entitle the vendee to rescission. The ultimate question of the existence of a redhibitory vice is a question of fact for the trial judge which should not be disturbed in the absence of manifest error or abuse of the wide discretion afforded him. Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir.1978); Newman v. Dixie Sales and Services, 387 So.2d 1333 (La.App. 1st Cir.1980).

In a redhibitory suit, the judge has the discretion to decree merely a reduction of the price where the defect in the thing sold is such as to merely diminish the value. LSA-C.C. Arts. 2541 and 2543.

In the present case, although the plaintiff had no obligation to tender the vehicle to GM for repair, the court found that the vehicle was in fact repaired within a reasonable time following the sale.

Theoretically the proper measure for reduction in price in a redhibitory action is the difference between the sale price and the price a reasonable buyer and seller would have agreed upon had they known of the defect, but the buyer can recover the cost of having the defect repaired elsewhere. Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App. 3rd Cir.1975).

In the instant case, the repairs were made free of charge and plaintiff was offered substitute transportation while the vehicle was being repaired. The trial judge found that the plaintiff failed to prove a sufficient amount of inconvenience for him to be entitled to an award for such. Furthermore, the plaintiff failed to show with reasonable certainty facts disclosing the amount of the reduction to which he is entitled. Galt v. Herndon, 16 La.App. 239, 133 So. 800 (2d Cir.1931); Ehrlich v. Roby Motors Co., 166 La. 557, 117 So. 590 (1928); Harding v. Ed Taussig Edsel Motors, Inc., 130 So.2d 517 (La.App. 3rd Cir.1961).

Under these circumstances, we are unable to find manifest error in the trial judge’s failure to award a reduction in the purchase price as against GM.

Plaintiff also asserted a cause of action under the Magnuson-Moss Warranty Act, 15 U.S.C.A. § 2301 et seq. Plaintiff introduced into the record a written warranty provided by GM. The act requires that a warrantor must remedy without charge and within a reasonable time a consumer product that is defective, malfunctions or fails to conform with the warranty. As aforestated, we find no error in the trial judge’s determination that the defect was repaired within a reasonable time. Thus, plaintiff is not entitled to any recovery under the Magnuson-Moss Warranty Act.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are assessed to plaintiff, Larry N. Dickerson.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Moses WILLIAMS, Jr., Defendant-Appellant.
    No. CR 83-482.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Sherman Stanford, Opelousas, for defendant-appellant.
    David Miller, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   STOKER, Judge.

Defendant, Moses Williams, Jr., was charged by grand jury indictment of two counts of perjury, violations of LSA-R.S. 14:123. The charges arose from sworn statements previously made to the grand jury by the defendant.

After a trial before a jury of six, defendant was found guilty as to one count and not guilty as to the other. He was initially sentenced to a term of five years in the custody of the Department of Corrections. In subsequent proceedings, that sentence was vacated and defendant was re-sentenced to a term of ten year's in the custody of the Department of Corrections pursuant to the Habitual Offender Law, LSA-R.S. 15:529.1.

Defendant appealed, but has failed to either brief or argue his assignments of error. Assignments neither briefed nor argued are considered abandoned. State v. Smith, 430 So.2d 31 (La.1983). Therefore, this case is reviewable only for errors discoverable by a mere inspection of the pleadings and proceedings and without in: spection of the evidence. LSA-C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976). We have fully reviewed the record for these errors and find none.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


text:
    Ronald D. TROUARD for the Succession of Edward J. Trouard, Plaintiff-Appellee, v. ALL AMERICAN ASSURANCE COMPANY and Metro Federal Savings and Loan Association, Defendants-Appellants.
    No. 83-497.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Kleinpeter & Kleinpeter, R. Loren Klein-peter, Baton Rouge, for defendants-appellants.
    Jeff Townsend, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.

      . On December 2, 1983, the Federal Savings and Loan Insurance Corporation (FSLIC) was appointed sole receiver for Metro for the purpose of liquidation, pursuant to 12 U.S.C.A. § 1464(d)(6). By order of this court dated February 8, 1984, FSLIC was substituted as the party plaintiff in place of Metro Federal Savings and Loan Association of Lake Charles.

   GUIDRY, Judge.

Ronald Trouard and Anna Belle Trouard, sole heirs of Edward J. Trouard, deceased, brought this suit against All American Assurance Company (hereafter All American) seeking payment of proceeds allegedly due under a contract of credit life insurance and for penalties and attorney’s fees. Metro Federal Savings & Loan Association, formerly Guaranty Federal Savings and Loan Association (hereafter Metro), was also named as a defendant. Plaintiffs, in the alternative, assert their right to damages from Metro for its alleged failure to procure insurance. Metro filed a third party demand against All American for indemnity. All American also filed a third party demand against Metro for indemnity and/or contribution.

The case was submitted to the trial court upon the deposition of one witness, the pleadings, answers to interrogatories and admissions of fact. The trial judge rendered judgment in favor of the plaintiffs against All American for the proceeds of the credit life insurance policy together with penalties and legal interest. All other claims were dismissed. All American appeals from the judgment only insofar as it dismisses its third party demand against Metro. There were no other appeals taken and no answers to All American’s appeal.

The facts are undisputed. Edward J. Trouard requested credit life insurance on November 27, 1978 in connection with a loan from Guaranty Federal, the ancestor of Metro. Metro withheld the sum of $950.00 from the loan proceeds, which sum it forwarded to Insurance Unlimited, a general insurance agency. Insurance Unlimited, presumably as agent for All American, issued a certificate of insurance in the name of Edward J. Trouard and forwarded it with a check in the amount of $332.50 to All American. The check .and certificate were signed by Larry Christ of Insurance Unlimited. Insurance Unlimited retained the balance ($617.50) as a commission.

On December 4, 1978, All American received the certificate and check, which it deposited to its account, but then decided to cancel the policy. Cathy Touchet, the account clerk at All American, wrote the words “flat cancelled” across the certificate. She then forwarded to Metro a copy of the cancelled certificate, a check in the amount of the premium payment made payable to Metro, and a cover letter explaining the reason for cancellation and directing Metro to “cancel coverage and refund premium.” Metro deposited the check to its account. Neither All American nor Metro notified Mr. Trouard of cancellation of the policy nor did they refund the premium.

Mr. Trouard died on October 11, 1980 and All American thereafter denied coverage to Mr. Trouard’s heirs. This suit was then instituted by plaintiffs against All American and Metro. Insurance Unlimited was not made a party to this suit.

All American bases its third party demand on the allegation that Metro acted as their agent or as a commissioned broker and that Metro’s failure to give notice of cancellation and refund the premium to Trouard entitles All American to indemnity and/or contribution.

In this regard, the trial judge stated as follows:

“.. There’s nothing in the record, so far as I know of, demonstrating a contract between All American and Guaranty Federal, now Metro Federal, which obligates Metro to perform the function required by law to be performed by All American, or in their behalf. Do you know of any, or is there anything in the record, Mr. Kleinpeter?
MR. KLEINPETER: No sir. Neither one of us can find the master policy. Apparently it’s been destroyed by both entities, or lost somewhere along the way.
THE COURT: In that event, there being no showing of any contractual (sic) responsibility for the assumption of that duty, then the judgment will be rendered as prayed for on behalf of the plaintiff, and against the defendant, All American Assurance Company. The third party demands of All American Assurance Company and Metro Federal, against each other, will be dismissed, all at the cost of the defendant, All American.... ”

After a careful review of the record, we concur with the trial judge’s conclusion that the defendant simply failed to make a sufficient evidentiary showing of a principal-agent relationship between All American and Metro or that Metro was a commissioned insurance broker such as to entitle All American to a judgment over against Metro.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are assessed against defendant, All American Assurance Company.

AFFIRMED.

      . We express no opinion regarding All American’s entitlement to reimbursement of the return premium forwarded to Metro and deposited by the latter to its account as this matter is not before this court on appeal.