LeJeune v. LeJeune

167 So. 747, 184 La. 837
CourtSupreme Court of Louisiana
DecidedMarch 30, 1936
DocketNo. 33305
StatusPublished

This text of 167 So. 747 (LeJeune v. LeJeune) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LeJeune v. LeJeune, 167 So. 747, 184 La. 837 (La. 1936).

Opinions

HIGGINS, Justice.

This is a suit by Alvin M. Lejeune to disavow the paternity of a child born to his former wife, Adelaide James Lejeune, on the grounds that, because of his remoteness from his wife, cohabitation between them was physically impossible; and that the child was conceived as the result of an adulterous union between his former wife and William E. Salyards and the child’s birth was concealed from plaintiff.

Defendants filed exceptions of no cause or right of action to- the petition. The plaintiff has appealed from the judgment of the lower court sustaining the exceptions and dismissing the suit.

Exceptions of no cause and no right of action must be decided on the face of the petition and every well pleaded fact therein contained, for the purpose of the exceptions, must be considered true and1 thejt must be overruled if the plaintiff is-entitled to some relief under the allegations of his petition. Thompson v. General Accident, Fire & Life Assur. Corp., 155 La. 31, 98 So. 746; Davis v. Arkansas Southern Ry. Co., 117 La. 320, 41 So. 587; Doullut v. McManus, 37 La.Ann. 800; Hillard v. Taylor, 114 La. 883, 884, 38 So. 594; Central Improvement & Contracting Co. v. Grasser Contracting Co., 119 La. 263, 264, 44 So. 10; J. A. McCoy et al. v. Arkansas Natural Gas Co. et al., 183 La. 1079, 165 So. 632.

Under title 7 of the Revised Civil Code, on the subject of “father and child,” section 1 of chapter 2, treats “of legitimacy resulting from marriage.” The first article thereunder, No. 184, provides:

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

This has been termed by the courts to be the strongest presumption known in law, and in the case of Dejol v. Johnson, 12 La.Ann. 853, this court held that that presumption “can only be rebutted in the mode and within the time prescribed by law.”

Plaintiff’s action is based on the provisions of articles 185 and 189 of the Revised Civil Code, which read as follows:

“185. The husband can not by alleging his natural impotence, disown the child; he can not disown it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.”

[748]*748“189. The presumption of paternity as an incident to the marriage is also at an end, when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible.”

The facts, alleged in the petition, are substantially as follows:

That plaintiff’s former wife, during September, 1932, began an adulterous connection with William E. Salyards; that during the latter part of 1932, he became suspicious of her conduct and from January, 1933, he ceased occupying the same room or cohabiting with her; that the conception of the child was concealed from him until April, 1933, when he notified his former wife that he intended to obtain a divorce from her because of her adultery with Salyards, and “at that time the conception was only hinted at by her”; that he filed suit for a divorce on May 15, 1933, charging her with adultery, and in her answer to his suit for divorce, sworn to on May 31, 1933, she stated that she had been pregnant for four months; that the decree of divorce was granted in favor of plaintiff on the 29th day of November, 1933; that a male child was born to his former wife at the Lady of the Lake Sanitarium in the parish of East Baton Rouge on the 1st' of December, 1933; that the birth of the child was concealed from him; that he obtained information as to its birth through outside sources; that because of his alleged remoteness from his wife during the period of -conception up to the time of its birth, it was impossible for him to be the father of the child; that the child was born as the result of an adulterous union between his former wife and Salyards; that he did not know the name of the child, but was informed that it was given the name of Billy or William James Lejeune; and that the records of the bureau of vital statistics of the state of Louisiana did not show any name given to the child.

We have carefully reviewed the jurisprudence of this state on the subject of disavowal of paternity, a full discussion of which is to be found in the case of Beard v. Vincent, 174 La. 869, 141 So. 862. See, also, Succession of Barth, 178 La. 847, 152 So. 543, 545, 91 A.L.R. 408.

In the Succession of Barth, supra, we said, quoting from the case of Harrington v. Barfield, 30 La.Ann. 1297:

“ ‘The -child born after one hundred and eighty days after marriage is presumed to be the husband’s child.’ This presumption, according to article 189 of the Civil Code, cannot be overcome except by the proof that the husband zvas so far away from the wife, when the child zvas conceived, that cohabitation was ‘physically impossible’ ; and such proof is admissible only in the cases where, according • to articles 190 to 192, the husband may disavow the paternity of his wife’s child. In such cases, in order to overcome the presumption of paternity, the proof must be, literally, that cohabitation beizveen the husband and wife was, as the Code says, ‘physically impossible.’ In Tate v. Penne, 7 Mart.(N.S.) 548, it was said: ‘The legal presumption of the husband being the father, and of access being presumed in cases of voluntary separation can only be destroyed by evidence bringing the parties within the exception the lazv has created to the rule, namely, the physical impossibility of connection — moral will not do.’ To the same effect, see Vernon v. Vernon’s Heirs, 6 La.Ann. 242; and Switzer v. Switzer, 170 La. 550, 128 So. 477.” (Italics ours.)

We do not think that the allegations of plaintiff’s petition with reference to his remoteness from his former wife at the time of the child’s conception show physical impossibility of cohabitation between them as required by article 189 of the Civil Code.

Do the allegations of plaintiff’s petition with reference to the concealment of the birth of the child disclose a cause or right of action ? We are assured by counsel that this court has not passed on a case involving this particular ground, which is covered by article 185 of the Civil Code. A reading of the articles of the Code demonstrates that the framers of our Code intended to shield domestic affairs as much as possible from the publicity of the courtroom. Consequently, they declared the husband was presumed to be the father of the children conceived during marriage (article 184), and that he cannot even, by alleging his natural impotence, disown them (article 185). But the latter article contains the additional sentence: “He can not disown it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.”

This article clearly provides that if the husband and wife were living and cohabiting together, he cannot disown the child in case of his natural impotence, not even on the grounds of adultery, but that he [749]*749shall be permitted to prove that he is not the father of the child, if his wife has con; cealed the birth of the child from him.

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Related

State v. Allen
165 So. 203 (Supreme Court of Louisiana, 1936)
McCoy v. Arkansas Natural Gas Co.
165 So. 632 (Supreme Court of Louisiana, 1936)
Succession of Barth
152 So. 543 (Supreme Court of Louisiana, 1934)
Beard v. Vincent
141 So. 862 (Supreme Court of Louisiana, 1932)
Switzer v. Switzer
128 So. 477 (Supreme Court of Louisiana, 1930)
Hillard v. Taylor
38 So. 594 (Supreme Court of Louisiana, 1905)
Davis v. Arkansas Southern R.
41 So. 587 (Supreme Court of Louisiana, 1906)
Central Improvement & Contracting Co. v. Grasser Contracting Co.
44 So. 10 (Supreme Court of Louisiana, 1907)
Thompson v. General Acc., Fire & Life Assur. Corp.
98 So. 746 (Supreme Court of Louisiana, 1923)
Vernon v. Vernon's Heirs
6 La. Ann. 242 (Supreme Court of Louisiana, 1851)
Dejol v. Johnson
12 La. Ann. 853 (Supreme Court of Louisiana, 1857)
Doullut v. McManus
37 La. Ann. 800 (Supreme Court of Louisiana, 1885)

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Bluebook (online)
167 So. 747, 184 La. 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lejeune-v-lejeune-la-1936.