#### Arlene King BABINEAUX v. PERNIE-BAILEY DRILLING COMPANY et al.

No. 8222.

Court of Appeal of Louisiana, First Circuit.

March 15, 1971.

Concurring and Dissenting Opinion March 23, 1971.

Rehearing Denied En Banc May 31, 1971.

Writ Granted Sept. 23, 1971.

See also, La.App., 230 So.2d 864.

*225J. Minos Simon and J. Rixie Mouton, Lafayette, for appellant.

John R. Tharp, of Taylor, Porter, Brooks & Phillips, Baton Rouge, for appellees.

Before LOTTINGER, SARTAIN and PICKETT, JJ.

LOTTINGER, Judge.

This suit is before this Court on appeal from a judgment by the Lower Court maintaining a peremptory exception of no right or cause of action; The plaintiff has taken this appeal.

This suit was brought by Mrs. Arlene King Babineaux, as petitioner, on her own behalf and on behalf of four minor children for the death of Cecyl Paul Babi-neaux, the alleged husband of petitioner and father of the children. The named defendants are Pernie-Bailey Drilling Company, its liability insurer, Travelers Insurance Company, D. J. Doucet, the Sheriff of St. Landry Parish at the time of the alleged killing and Merlin Joseph Hanks and Willie Castille, both employees of Pernie-Bailey Drilling Company and both insured under the terms of the Travelers policy. The petition alleges that on and prior to February 9, 1967, defendants Cas-tille and Hanks, had been deputized by Sheriff Doucet and on February 9, 1967, Hanks, aided and abetted by Castille, while acting within the course and scope of their employment with Pernie-Bailey Drilling Company, and while attempting to function as Deputy Sheriffs did, without just cause or reason, shoot and kill Cecyl Babineaux. Petitioner, as the alleged widow of said deceased and for and on behalf of the alleged children of the deceased, filed this claim against the defendants for damages as a result of the death of Babineaux.

*226A peremptory exception was filed on May 25, 1969, on the grounds that the petition failed to state a right of action in petitioner individually and in her purported representative capacity because petitioner’s alleged marriage to Babineaux on April 25, 1960, was a complete nullity. Filed in evidence is a certified copy of the proceedings in Suit Number 7297 of the family court of the Parish of East Baton Rouge, which reflects that the petitioner’s divorce from Ronald C. Arnold was not granted until March 2, 1962, nearly two years after her attempted marriage to decedent. Petitioner then amended her petition, alleging that in the early part of 1960 she was informed by Roland C. Arnold that he had obtained a divorce. She claims that she was, therefore, in good faith on April 25, 1960, when she married Cecyl Babi-neaux, and was, therefore, his putative wife at the time of his death.

On trial of the exception, petitioner testified that on the morning of her marriage to Babineaux, she telephoned her prior husband, Roland C. Arnold, and as a result of their conversation she felt assured that she was free to marry Babineaux. Judge Fred A. Blanche, who was then the Trial Judge, stated that he would “give her the benefit of the doubt” and ruled that petitioner was a putative or good faith wife. Subsequently, defendants reurged their exception of no right or cause of action and, on trial of same, called Roland C. Arnold as a witness. He testified that he married petitioner on December 31, 1956, and obtained a divorce from her on March 2, 1962. He was emphatic and convincing in his testimony that he had never at any time led petitioner to believe that he had a divorce or that she had one.

Petitioner and her sister-in-law, Mrs. Doucet, took the stand and testified that Mr. Arnold had misled the petitioner into believing that she had a divorce from him on the date that she attempted to marry Cecyl P. Babineaux. In maintaining the exception, the Lower Court said:

> “This Court observed the demeanor of the witnesses on the stand, thoroughly reviewed the records and the testimony of the various witnesses and, quite frankly, is completely satisfied that Roland Arnold was an honest witness and truthfully testified. His credibility is not the slightest impeached by the testimony of the plaintiff and her sister-in-law. This court finds that at no time did Roland Arnold mislead the plaintiff with reference to their divorce and holds that the plaintiff was not the legal or putative wife of Cecyl P. Babineaux, and that without doubt she was in legal bad faith on the date of their marriage on April 25, 1960. Further, the child, Paul Drake Babineaux, who was born on August 7, 1960, cannot be presumed to be the child of Cecyl P. Babineaux. The three remaining children are not properly represented in this action since no one has qualified to represent them.”

Mr. Arnold testified that he did meet with his wife and a man and woman at a restaurant in the City of Baton Rouge. The man and the woman, according to the record, was Mrs. Doucet, the sister of deceased, and her husband. At this meeting, Mr. Arnold testified that he was asked by petitioner if he would help her and he replied that he didn’t know of any way he could help her. According to his testimony, she requested him to give testimony to the effect that he had led her to believe that they had been divorced prior to her marriage to Mr. Babineaux. He told her that he was sorry for her and the children and that if there was anything he could do he would like to help, but that he would not commit perjury.

The fact that the Lower Court believed the testimony of Mr. Arnold, and not that of the petitioner and Mrs. Doucet, is within the wide realm of discretion allowed to the Lower Court in such cases. Of course the parties were present in court, and the Court could observe their demeanor and actions and we certainly cannot say that the Lower Court erred in holding that Mrs. *227Babineaux was not mislead by the actions or the statements of Mr. Arnold.

The plaintiff contends that the first ruling on the exception made by Honorable Fred A. Blanche to the effect that the petitioner was a putative or good faith wife of the decedent, has become the law of the case and that, therefore, the decision on the second peremptory exception by Honorable Donovan W. Parker which in effect overruled the prior decision by Judge Blanche, was in contravention of the well established doctrine in Louisiana that a decision as to such an exception once made becomes a law of the case and cannot be reversed by another Judge of the same court.

The ruling by Judge Blanche in overruling the exception was an interlocutory decree of the Court which was not final. The second, or subsequent, ruling by Judge Parker in maintaining the exception was a final decree of the Lower Court.

In Labourdette v. Doullut and Williams Ship Building Co., Inc., 156 La. 412, 100 So. 547, the petitioner instituted a tort action and defendant filed an exception of no cause of action which was overruled. The case was subsequently set for trial and the defendant, at the opening of the trial, objected to the reception of any evidence in the case for the same reasons for which he had previously filed the exception of no cause of action. In granting the defendant relief, the Supreme Court expressed itself as follows:

> “As the judge overruled the exception, the question arises as to whether or not he had a right to entertain an objection, based upon the same ground as was the exception. We entertain no doubt that he had a right to do so. The decree overruling the exception was merely an interlocutory decree. The judge had the right, therefore, at the stage of the proceeding at which the objection was made, to set aside the decree, even of his own motion, and thereafter to sustain the exception, upon finding that he had erred in overruling it. As our brother had that right, we think that he had the right to accomplish the same end indirectly by sustaining an objection, based on the same grounds as was the exception-”

In Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152, the Federal Supreme Court said:

> “In the absence of statute the phrase, 'law of the case’, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses a practice of courts generally to refuse to reopen what has been decided, not a limit to their power.”

In the subsequent trial on the exception, evidence was introduced by the defendant which was not available to them at the prior hearing. This evidence, according to the decision of the Lower Court conclusively showed that at the time the petitioner married the deceased, there was a serious legal impediment to such marriage, that is a prior marriage to Mr. Arnold. We, therefore, find no error on the Lower Court in its decision upon the trial of the second exception of peremption.

Article 117 of the Louisiana Civil Code provides that the marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith. In the present case the evidence shows that the petitioner was not in good faith when she went through the performance of the marriage ceremony with decedent.

In Wiley v. Stewart, 145 La. 1081, 83 So. 260, the Court held that a woman’s attempted second marriage while she knew that her first husband was living is not a good faith marriage.

In Beebe v. Moormack Gulf Lines, 5 Cir., 59 F.2d 319, certiorari denied 287 U.S. 597, 53 S.Ct. 22, 77 L.Ed. 520, the Court held that an undissolved prior marriage rendered second marriage ceremony in Louisi*228ana null and void. Therefore, under the law and the jurisprudence of this state, the purported marriage of petitioner to the deceased, being in bad faith, produced no civil effects, and she has no right of action herein.

We further feel that the Lower Court was correct in dismissing the suit by petitioner on behalf of Paul Drake Babineaux who was born on August 7, 1960. As Mr. Arnold did not obtain a divorce from the petitioner until March 2, 1962, there is a conclusive presumption that Paul Drake Babineaux is his legal son. Article 184 of the Louisiana Civil Code provides:

> “The law considers the husband of the mother as the father of all children conceived during the marriage.”

The Louisiana Supreme Court has held that this presumption “is the strongest presumption known in law.” Feazel v. Feazel, 222 La. 113, 62 So.2d 119.

Controlling as to the question presented is the decision in George v. Bertrand, La.App., 217 So.2d 47, writs refused, 253 La. 647, 219 So.2d 177, wherein the Court held that where a child was conceived and born during the marriage of his mother and her legal husband, so that child was a legitimate son of the mother’s legal husband, a man who was living with the mother at the time of child’s conception and birth and who later married child’s mother and who acknowledged the child, was not the child’s legal father and he did not legitimate the child and could not maintain an action for the wrongful death of the child. We feel that the reverse would be true and that, therefore, the child born under such conditions could not maintain an action for the wrongful death of its blood father who was not the legitimate father of the child.

We do feel, however, that the Lower Court erred in dismissing, as of nonsuit, the action brought by petitioner on behalf of her other minor children, namely, Dixie Anna Babineaux, Tracy Ann Babineaux, and Odie Dean Babineaux.

Article 926 of the Louisiana Code of Civil Procedure provides that an exception as to lack of procedural capacity is a dilatory exception. Article 928 of the Louisiana Code of Civil Procedure provides that the dilatory exception shall be pleaded prior to answer or judgment by default. The record clearly discloses that the exception was not filed until after the answer had been filed. Under the holding in Davis v. Royal—Globe Insurance Companies, La.App., 223 So.2d 912, the exception was filed too late and should not have been maintained by the Lower Court insofar as the said three children were concerned.

For the reasons hereinabove assigned, the judgment of the Lower Court will be amended so as to overrule the exception with regard to the claim by petitioner filed for and on behalf of her minor children, Dixie Anna Babineaux, Tracy Ann Babi-neaux, and Odie Dean Babineaux, and, as so amended, the judgment of the Lower Court will be affirmed. All costs of this appeal shall be paid by defendants.

Judgment amended and affirmed.

SARTAIN, Judge

(concurs in part and dissents in part).

I concur in that portion of the majority’s decision which affirms the trial judge’s ruling that Mrs. Arlene King Babineaux was in legal bad faith in her marriage to Mr. Cecyl Paul Babineaux and therefore not entitled to maintain a right of action under C.C. Art. 2315 for the death of Mr. Babi-neaux. However, I dissent from the majority’s decision which denies the oldest child, Paul Drake Babineaux, his right of action for his father’s death.

The facts in this case are not in dispute. Mr. and Mrs. Babineaux were married on April 25, 1960. At this time Mrs. Babi-neaux was still the legal wife of Roland C. Arnold because it was not until March 2, *2291962 that Mr. Arnold obtained a divorce from her. Paul Drake Babineaux was born on August 7, 1960. The majority has concluded that under C.C. Art. 184 young Babi-neaux is the legal child of Mr. Arnold because at the time of his birth his mother was married to Arnold, notwithstanding the provisions of Arts. 117-118.

> The pertinent articles provide:

> C.C. Art. 117

> “The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

> C.C. Art. 118

> “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.”

and

> C.C. Art. 184

> “The law considers the husband of the mother as the father of all children conceived during the marriage.”

It is significant to me that Arts. 117-118 are the concluding articles of Title 4, Chapter 4 of the Civil Code on the subject “OF THE NULLITY OF MARRIAGES” and Arts. 184 et seq. are contained in Title 7, Chapter 2 dealing with the subject “OF LEGITIMATE CHILDREN” which legitimacy results from marriage.

The majority is correct in determining that the marriage between Mr. and Mrs. Babineaux is a nullity because at the time there was an impediment affecting Mrs. Babineaux’s freedom to marry. This nullity, however, does not prevent the marriage from being a putative one thus permitting the flow of civil effects therefrom. Arts. 117-118 expressly provide for instances where a subsequent marriage is in fact deemed a nullity. The thrust of defendants’ exceptions (adopted by the majority) deal with Mrs. Babineaux’s bad faith and not that of Mr. Babineaux. This ignores the fact that young Paul Drake Babineaux’s rights arise out of the death of his father whose good faith was not attacked nor put at issue.

The only evidence in the record that is probative as to any bad faith on the part of Mr. Babineaux is the testimony of Mr. Arnold who stated that either in 1959 or 1961 his then wife (Mrs. Babineaux) and Cecyl Paul Babineaux came to Baton Rouge to inquire as to the status of a pending divorce action between the Arnolds. This evidence is insufficient to brand Mr. Babi-neaux with bad faith. Following the purported marriage between the Babineauxs, four children were born each registered as the child of Cecyl Paul Babineaux and Arlene King Babineaux. The evidence of Mr. Arnold as to the Baton Rouge visit is insufficient to cast him as a bad faith party and under these conditions his good faith must be presumed.

I further suggest that the law in Louisiana is well settled to the effect that where one of the parties to the marriage is in good faith any children of that marriage are legitimate and entitled to the rights and benefits of a legitimate child.

The application of C.C. Art 184 in the instant matter is erroneous because Arts. 184 et seq., of necessity deal with a valid marriage and the premise that the husband of the mother is the father of all children conceived during his marriage is well founded. Nonetheless, we are talking about two entirely different sections of the Civil Code and Arts. 117-118 dealing specifically with marriages that have been decreed a nullity should be given the weight and authority they deserve.

The decision of the majority by accepting the presumption enunciated in Art. 184 denies the child the benefit of his true and legal filiation which is specifically granted to him under Art. 118.

The case of George v. Bertrand, 217 So.2d 47 (3d La.App., 1969, writs refused) relied on by the majority is distinguishable from the facts in the instant case because in *Bertrand*the good faith of Ruffin *230George was not at issue. To the contrary the decedent’s mother and father lived together without the benefit of any marriage at the time of decedent’s conception and birth. Undoubtedly, Art. 118 was not considered because of the open concubinage between the decedent’s parents.

On the other hand, the case of Texas Company v. Stewart, 101 So.2d 222 (Orl.App., 1958, writs refused) holds that the presumption under Art. 184 must yield to the good faith grandfather and that under Art. 118 a granddaughter was the legitimate descendent of her good faith grandfather and not the legal descendent of Stewart, her “fictional” grandfather. In *Stewart*only one of the parties was in good faith but the issue of a subsequent bigamous marriage by virtue of that party’s good faith was decreed legitimate. This theory is well founded in law having been recognized in Miller v. Wiggins, 149 La. 720, 90 So. 109 (1921); Succession of Navarro, 24 La.Ann. 298 (1872) and the early authorities and French commentators therein cited. Later cases upholding the legitimacy of children born of putative marriages are Jones v. Equitable Life Assurance Society of United States, 173 So.2d 373 (1st La.App., 1965, writs refused) and Succession of Jene, 173 So.2d 857 (4th La.App., 1965).

For the above and foregoing reasons I believe that the decision of the trial court depriving the minor, Paul Drake Babi-neaux, of his right of action should be reversed.

ON APPLICATION FOR REHEARING

Before LOTTINGER, LANDRY, SAR-TAIN, ELLIS, BLANCHE and PICKETT, JJ.

LOTTINGER, Judge.

APPENDAGE TO ORIGINAL OPINION

The dissenting opinion rendered herein places great emphasis on C.C. Art. 118 and says that C.C. Art. 184 is not applicable. We beg to differ and say that even C.C. Art. 118 is not applicable and does not apply to the oldest child, Paul Drake Babineaux.

> C.C. Art. 118 provides:

> “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the *children born of the marriage.”*(Emphasis added)

Now let us see if Paul Drake is a child “born of the marriage” between Arlene and Babineaux.

Arlene King, who was *previously married and not*divorced, *married*Babineaux on April 25, 1960. Paul Drake was born on August 7, 1960, three months and twelve days, or 102 days after the marriage with Babineaux. Arlene King was divorced by Ronald C. Arnold, her first husband, on March 2, 1962. Can you say that Paul Drake is a means from; derivation of; source of; belonging to; or springs out of; or is connected with; or is the result of the *marriage*that took place on April 25, 1960. We say that C.C. Art. 186 throws some light on the answer. “The child capable of living, which is born before the one hundred and eightieth day after the marriage, is not presumed to be the child of the husband; * * In this case the child was born 102 days after the marriage in question and no action was ever brought to disavow or repudiate this child by Ronald C. Arnold, Arlene’s legal husband, at the time. This child was conceived by Arlene during her marriage to Arnold. (C.C. Art. 184) It is physiologically and biologically impossible for Paul Drake to be a product of or “born of the marriage” in question.

If the redactors of the Civil Code in drafting C.C. Art. 118, had so desired, they could have used the words “born during the marriage”, as they used in C.C. Art. 179, but all to the contrary, they used the words “born of the marriage”, for a reason.

There is certainly nothing ambiguous or difficult to grasp or understand about C.C. Art. 118 so therefore “When a law is clear and free from all ambiguity, the letter of it *231is not to be disregarded, under the pretext of pursuing its spirit.” C.C. Art. 13.

For the reasons given herein, we say that Paul Drake Babineaux does not come under C.C. Art. 118 for the reason he is not a child “born of the marriage” in question.

The reasons given herein are additional reasons to support the majority opinion previously rendered herein.

BLANCHE, J., recused.