Fontenot v. U.S. Fidelity & Guaranty Co.

• Decision Date: 27 May 1959
• Docket Number: No. 4838,4838
• Citation: 113 So.2d 33
• Parties: Daniel Burke FONTENOT et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 33

113 So.2d 33

Daniel Burke FONTENOT et al., Plaintiffs-Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al Defendants-Appellees.

No. 4838.

Court of Appeal of Louisiana, First Circuit.

May 27, 1959.

Rehearing Denied June 24, 1959.

Tate & Tate, Mamou, for appellant.

Plauche & Plauche, King, Anderson & Swift, R. W. Farrar, Jr., Lake Charles, for appellee.

Before ELLIS, TATE and LOTTINGER, JJ.

ELLIS, Judge.

Plaintiffs, Mrs. Lou Ella LaFleur Fontenot and Daniel Burke Fontenot in his capacity as administrator of the estate of his minor child, Gary Keith Fontenot, have appealed from a judgment of the district court dismissing their suit as of non-suit for failure to comply with an order of the lower court which required plaintiffs to make proper provision for court costs within sixty days under penalty of dismissal as of non-suit. The court had, in the inception of the suits by plaintiffs, allowed the latter to proceed in forma pauperis, however, a rule was filed by the defendants to traverse the order, and upon a trial the lower court held that the plaintiffs were able to pay the costs and rescinded the order allowing the plaintiffs to proceed in forma pauperis. The appeals were allowed without the furnishing of cost of security, based upon authorities urged for the first time in the motion for an appeal in forma pauperis, viz., Fields v. Rapides Parish School Board, 1955, 228 La. 148, 81 So.2d 842, and Causey v. Opalousas-St. Landry Securities Company, 1937, 187 La. 659, 175 So. 448.

The plaintiffs rest their case squarely upon the Fields and Causey cases, supra, by the Supreme Court. On the other hand, the defendants concede that any damages which could be recovered by the wife, Mrs. Fontenot, are her separate property, as well as any damages recovered on behalf of the minor child. The defendants also concede that the Fields case, supra, is squarely against them, however, they argue that the costs should be advanced by the community because the husband has the administration of the paraphernal property of his wife, Article 2385, and as such must act as a prudent administrator, De Young v. De Young, 9 La.Ann. 545, and if he fails to administer his wife's separate estate properly upon dissolution of the union, the wife or her heirs have a cause of action against him to recover damages sustained by his improper administration, citing De Young v. De Young, supra; Barbet v. Roth, 16 La.Ann. 271.

Based upon the above cited Article of the Civil Code and the authorities cited to substantiate defendant's argument, the latter takes the position that as the community has been judicially declared as financially able to pay the cost of the suit, the husband as head and master of the community, must in the performance of his duties imposed upon him by the Civil Code (as administrator of his wife's separate estate) provide from the community assets the cost of the wife's separate suit as it is necessary for the conservation of her separate estate. It would appear that the defendants are assuming something that does not exist in this case as we are not dealing with any paraphernal property of the wife, which is subject to the husband's administration and, therefore, the community cannot be compelled to furnish costs necessary for the conservation of her claim.

Defendants' next contention is that the husband is required by the LSA-Civil Code, Article 120, to provide his wife with the conveniences of life, and in compliance with this codal provision the courts have held a husband liable for debts incurred by the wife, citing D. H. Holmes Co. v. Huth, La.App., 49 So.2d 875, and that under Article 119 of the LSA-Civil Code the husband and wife owe to each other mutuality, fidelity, support and assistance, and that, therefore, in view of the above obligations imposed upon the husband by law and the jurisprudence interpreting same that it would be most unrealistic for this court to hold that the husband has no obligation to provide his wife with the necessary means to proceed with her law suit. The advancement of costs to the wife for the prosecution of a separate claim for damages by the husband from the community assets has not been designated by our law nor recognized by our jurisprudence as being among the requirements 'for the convenience of life' which the husband is obliged to furnish the wife under Article 120 of the LSA-Civil Code and the jurisprudence cited by defendants, supra. In addition, there is no legal obligation under which the wife could secure funds from the community to take care of the cost of prosecuting her separate claim for damages, nor by which she could compel the husband as head and master of the community to furnish funds for costs for the prosecution of her separate claim. Regardless of the financial condition of the community, whether it be worth millions, there is no legal obligation imposed nor provided by which a wife can secure therefrom funds necessary for the prosecution of her personal suit for damages which, when successfully prosecuted no...