author: PONDER, Justice.

text:
    228 La. 871
    Succession of Mrs. Olympe LAFFERANDERIE, Widow of Armand Desmare.
    No. 42061.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Richard J. Meunier, Thomas J. Meunier, New Orleans, for defendant-appellant.
    Herbert S. Weil, Philip R. Livaudais, New Orleans, Walter F. Marcus, Jr., New Orleans, of counsel, for plaintiff-appellee.
   PONDER, Justice.

This is an appeal from a judgment of the Civil District Court decreeing a nun-cupative will by public act invalid and void on the ground that the testatrix lacked testamentary capacity to make the will, and recognizing a prior nuncupative will executed by the decedent.

Mrs. Lillian White, universal legatee and testamentary executrix, brought proceedings for the probation of a nuncupative will by public act, executed on March 10, 1954. She qualified as testamentary executrix and thereafter Dr. George B. Crozat, named legatee and executor in a prior will dated July 29, 1948, brought suit seeking to have the will dated March 10, 1954, declared null and void on the grounds that it was not executed in compliance with law and that the testatrix lacked testamentary capacity to make the will due to her senile dementia. He asked that the will dated July 29, 1948, in which he was named executor, be recognized as the last will and testament of the decedent. Mrs. White, in answer to the suit, denied the lack of testamentary capacity on the part of the testatrix. The lower court, upon trial of the case, gave judgment decreeing the will, dated March 10, 1954, void on the ground that the testatrix lacked mental capacity to make a will at the time it was executed and ordered the will dated July 29, 1948, to be probated. Mrs. White has appealed.

The appellant contends that the appellee failed to prove that the testatrix lacked testamentary capacity at the time the will was made. She takes the position that the presumption of sanity at the time of making the will has not been successfully rebutted.

There is no dispute as to the law governing this case. The litigants concede that there is a legal presumption of sanity at the time of the will’s confection and that the person attacking the will has the burden of showing lack of testamentary capacity when the will was executed. It is also conceded that it is only necessary to prove that the testatrix possessed testamentary capacity at the moment the will was made even though the testatrix may have been irrational at times. It is further conceded that the test of testamentary capacity is the ability of the testatrix to comprehend the condition of her property and her relation to those who may naturally expect to become the object of her bounty. Therefore, the dispute arising in this case is one of fact.

In determining the mental capacity of a person suffering from senile dementia or senility, great weight must be given to the testimony of attending physicians, nurses, and persons who have been in close contact with the testatrix at the time of the making of the will. Succession of Pizzati, 218 La. 549, 50 So.2d 189, and the numerous authorities cited therein.

The decedent, Mrs. Desmare, at the time of her death on March 19, 1954, was 86 years of age. On March 8, 1954, eleven days prior to her death, she was admitted to Sara Mayo Hospital because it was believed that she had received a fracture of the hip resulting from a fall. After tests and X-rays were made, it was ascertained that her hip was not fractured but that she was suffering from diabetes, for which she had been treated for a number of years. She died from chronic nephritis, diabetes mellitus and uremia. It appears from the evidence that she was in a coma for four days prior to her death.

The will in contest in this case was executed on March 10, 1954, nine days prior to Mrs. Desmare’s death which occurred on March 19, 1954. It was executed in nuncupative form before a notary public and four witnesses. It appears the notary was not acquainted with the decedent prior to the time of the making of the will and that one of the witnesses, Mrs. Favre, was a tenant and close friend of Mrs. White, sole and universal legatee, and two of the other witnesses were relatives of Mrs. Favre. The remaining witness was engaged to be married to the brother of Mrs. Favre.

Dr. Eugene H. Claverie, the physician who attended decedent from 1942 until the time of her death, testified that the testatrix began to fail mentally in the year 1949 and that since May of 1951, upon his instructions, a niece, Dr. Anita Crozat Kornsdorf, had taken over the management, of Mrs. Desmare’s affairs due to the fact that the testatrix was incapable of administering them. He testified that from the date of her admission to the hospital until the date of her death she was irrational, did not know where she was, did not recognize him or those related to her and was completely disoriented. He further testified that in the afternoon of the day that the will was made, the nurse attending the testatrix telephoned him that the testatrix was in such bad condition that it was impossible to manage her. Upon receiving this call, Dr. Claverie called relatives of the testatrix and informed them that he would not be responsible for her (testatrix) unless one of the relatives would be in attendance at all times. He stated that he went to see the testatrix on the afternoon of the date the will was made and she told him that he had made her sign a paper giving all of her property to him, Dr. Claverie. Upon interrogation of a patient in the ward he learned that a will had been executed that day. He stated that at that time the testatrix was so irrational that she did not comprehend anything. He immediately notified some of her relatives and thereafter called in two psychiatrists, Dr. Charles S. Holbrook and Dr. Fred S. Brewer, to examine the testatrix.

Dr. Holbrook examined the testatrix on March 12th and on two subsequent occasions. He testified that the testatrix was suffering from chronic brain syndrome with senile mental deterioration or, in common parlance, softening of the brain or advanced senility, and that it was impossible for her to be competent and have her faculties at the time of the making of the will. Dr. Brewer examined the testatrix and his testimony is to the same effect.

Dr. W. Hammond Newman, an orthopedist who attended the testatrix when she was admitted to the hospital, testified that the testatrix was suffering from senile dementia; that she was not in touch with reality; and was not oriented in- any sphere; that she did not know where she was and that this condition undoubtedly existed for some time prior-to her admission to the hospital. Dr. Newman also-testified that on March 8th, the date of her admittance to the hospital, the testatrix denied having incurred a fall and that she-was in such poor mental condition that it was impossible for him to secure a case-history from her.' His testimony is supported by the notation made by him on March 8th on the medical chart introduced; in evidence.

The only expert witness produced by the-appellant was Dr. Henry Tharp Posey, a. psychiatrist, who had not examined or ever seen the testatrix, but testified that in his-opinion from his examination of the hospital chart, that the testatrix’ irrationality-was due to the drugs that had been administered to her rather than to senile dementia. He was of the opinion that the-testatrix could have had a lucid interval and that the irrationality could have resulted from uremic poisoning.

Miss Vivian Swanson, one of the nurses-who attended Mrs. Desmare while she was-in the hospital, testified that the testatrix was senile and did not know what was. going on at the time that she was attending her. Mrs. Margaret Plaisance, a patient in the same ward, testified to the same effect. Ten other witnesses, consisting of' relatives, neighbors, and friends, testified in effect that the testatrix was unable to-comprehend and that she had been senile-for some years prior to her death.

The notary and the four witnesses to-the will testified that the testatrix was rational at the time the will was made. It was admitted by the witnesses to the will' that the testatrix was unable to remember the words of the will she was dictating and' on two occasions had to be prompted by-Mrs. Favre, who was standing on the side-of the bed <of the testatrix. They testified! that the testatrix did not have her glasses- and that Mrs. Favre said the words and. the testatrix repeated after her. The notary stated in his testimony that the testatrix requested him on two occasions to-place her hand on the line when she signed-her name. The appellant produced other witnesses who were neighbors, relatives and friends, who had not seen Mrs. Des-mare recently, and their testimony is to the effect that the testatrix was in possession of her faculties when they saw her. But an examination of their testimony shows that they did not interrogate or discuss with the decedent her business affairs but the conversations were principally about weather conditions and her health.

The appellant and the appellee are niece and nephew of the testatrix. In disputes arising between relatives of a deceased person it is well to ascertain which of these relatives’ testimony is corroborated by impartial and competent evidence. In this case the preponderance of the medical evidence clearly shows that the testatrix was incapable of making a valid will. The nurse and the patient in the ward, both disinterested witnesses who had every opportunity to observe the decedent, testified in effect that she was incapable of making a will.

It appears from the testimony that the manner in which the will was made, viz.: that the words had to be placed in the mouth of testatrix by Mrs. Favre and that she did hot voluntarily dictate her will,' corroborates the medical testimony to the' effect that decedent was incapable of making the will.

Ordinarily great weight is given to the testimony of the notary and the witnesses to the will but, where a notary has never before seen the testatrix, his opinion as to the mental capacity of the testatrix cannot prevail in the face of strong testimony to the contrary. As to the four witnesses to the will, it appears that Mrs. Favre took a very active interest in the confection of the will and the relationship of the other witnesses to her must be considered in arriving at a conclusion in this case.

After considering all of the testimony in this case, the conclusion is inescapable that the testatrix was incapable of making the will at the time the will was confected.; The trial judge arrived at. this conclusion and he had ample opportunity to observe the demeanor of the witnesses and manner in which they gave their testimony. We find no error in his conclusion that the will dated March 10, 1954, is invalid.

For the reasons assigned, the judgment is affirmed at appellant’s cost.


source: Caselaw Access Project

license: Public Domain

text:
    228 La. 880
    Margaret Cram STANSBURY, Merlin C. Stansbury, Jr. and Deborah Mary Stansbury v. MAYOR AND COUNCILMEN OF MORGAN CITY, Louisiana, and Mrs. Luke Grizzaffi, widow of Luke Grizzaffi.
    No. 42482.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Blanchard & Blanchard, C. A. Blanchard, Farrell A. Blanchard, Donaldsonville, for relator and plaintiff.
    Leonard C. Wise, Morgan City, for defendants and appellees.
   PONDER, Justice.

This Court granted writs to review a judgment of the Court of Appeal, see 80 So.2d 159, refusing damages to the plaintiff and her minor children for the death of her husband who was electrocuted when his body came in contact with uninsulated wires while he was engaged in painting the house of Mrs. Luke Grizzaffi. It is the allegation of the plaintiff that the mayor and councilmen of Morgan City, as owners and operators of the electric line system in that city, were negligent in failing to exercise proper supervision in keeping the wires in repair.

The decedent was found dead at the foot of the ladder he was using to paint the upper front portion of the house and there were no eyewitnesses to the accident. Death was due to contact with wires which were uninsulated and were attached to the house at the eave some ten feet from the ground. It was established by competent testimony that the wires were insulated when installed but the covering or insulation had deteriorated due to weather and exposure.

Expert testimony was introduced to show that the purpose of insulation on the wires is only for the purpose of installation in that it facilitates the handling of the wire itself and that after the wire is installed there is no necessity for insulation as a protection. This conclusion was rejected by this Court in the cases of Hebert v. Lake Charles Ice, Light & Waterworks Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101 and Potts v. Shreveport Belt Ry. Co., 110 La. 1, 34 So. 103. It was concluded in those cases that insulation was to afford protection to life contrary to expert testimony similar to that introduced herein.

In denying recovery the Court of Appeal found the case of Calton v. Louisiana Power & Light Co., 222 La. 1063, 64 So.2d 432 controlling in holding the defendant not guilty of negligence. In this the Court of Appeal committed error. In that case this Court pointed out that the high power lines constructed by the defendant company complied with all recognized standards of electrical construction, particularly those recommended by the Bureau of Standards of the United States Department of Commerce; and that the lines were at a proper height to safeguard against a contingency which could reasonably be foreseen or expected. That situation is not present here because the wires in question were so situated (ten feet above the ground, attached to the outside of the house) that it should have been obvious to the defendants that from time to time repairs would have to be made and workmen would be in close proximity to the wire.

The court was in error in concluding that the condition of the wires was not in violation of law. LSA-R.S. 40:1603 provides that all electrical wiring must be in compliance with the National Electrical Code which stipulates that in situations of this kind wires must have an insulation covering to prevent any detrimental leakage of current to adjacent conductors, objects, or the ground.

It was decided by this Court in the much cited case of Potts v. Shreveport Belt Ry. Co., 110 La. 1, 34 So. 103, 98 Am.St.Rep. 452 that even in the absence of statutory law a company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence, at places where others may have the right to go either .for work or pleasure, to prevent injury; that such company carries the duty of keeping its wires perfectly insulated; and it must exercise the utmost care to maintain them in this condition at such places. This rule-has been followed in the following cases: Hebert v. Lake Charles Ice, Light & Waterworks Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.St.Rep. 505; Babin v. Sewerage & Water Board of New Orleans, 2 La.App. 517; Ledet v. Lockport Power & Light Co., Inc., 15 La.App. 426, 132 So. 272; Bynum v. City of Monroe, La.App., 171 So. 116; Webb v. Louisiana Power & Light Co., La.App., 199 So. 451; Mays v. Southwestern Gas & Electric Co., 174 La. 368, 140 So. 826; Hughes v. Southwestern Gas & Electric Co., 175 La. 336, 143 So. 281. Likewise, in the following cases the electric company was found negligent for failure to insulate where such was specifically provided for by city ordinance: Haight v. New Orleans Public Service Co., 2 La.App. 405; Clements v. Louisiana Electric Light Co., 44 La.Ann. 692, 696, 11 So. 51, 16 L.R.A. 43; Moren v. New Orleans Ry. & Light Co., 125 La. 944, 52 So. 106. And in the case of Layne v. Louisiana Power & Light Co., La.App., 161 So. 29 the plaintiff was allowed to recover when he was injured by contact with wires connected to a house while he was engaged in repairing a roof because the defendant company was negligent in failing to insulate the wire in violation of the National Electrical Code.

Hence the jurisprudence of this state is to the effect that when electric wires are so situated at places where it is to be presumed that others will go for work or pleasure, there is a duty on the company not only to properly insulate these wires but also to exercise the greatest degree of care and constant vigilance in inspecting and maintaining the wires in perfect condition. This is especially true when there is a law which provides 'for such insulation.

Having concluded that there was negligence on the part of the defendants, it now remains to determine whether or not the decedent was contributorily négligent as contended by the defendants.

There were no eyewitnesses to the accident and the decedent was found at the bottom of the ladder on the ground and upon examination was pronounced dead. The coroner’s jury found that the cause of death was electrocution. The Court of Appeal found that the decedent was guilty of contributory negligence, in that he was grossly negligent and careless in painting under and around the electric wires and touching or coming in contact with them. That court relied upon the case of Bouchon v. New Orleans Ry. & Light Co., 154 La. 397, 97 So. 587.

Defendants introduced no evidence to show contributory negligence and none was shown. Whenever this defense is pleaded it is incumbent upon the party pleading -it to prove it by a preponderance of evidence. Clements v. Louisiana Electric Light Co., 44 La.Ann. 692, 11 So. 51, 16 L.R.A. 43, 32 Am.St.Rep. 348; Layne v. Louisiana Power & Light Co., La.App., 161 So. 29, 35. It was pointed out in the Layne case' that when a person is employed in the presence of a known danger, to constitute contributory negligence, it must be shown that he voluntarily and unnecessarily exposed himself to the danger and where there are no eyewitnesses to any act of negligence it is presumed that the decedent acted with ordinary care. The court in the Layne case quoted from Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N.W. 270, 18 Am.St.Rep. 441 the following: ‘““The reason for this rule is that life is dear to the normal person, and that he will not willingly do the thing which will extinguish it, but, on the contrary, will exercise due care to preserve it.” ’ ”

Furthermore, the case relied upon by the Court of Appeal, Bouchon v. New Orleans Ry. & Light Co., 154 La. 397, 97 So. 587, 588, shows by the very quotation used by that court that it is not applicable for the reason that Bouchon was warned of the danger of the wire and voiced his indifference with the eloquent answer, “ ‘Damn the wire.’ ”

There remains only the question of quantum of damages. The decedent was 24 years old when he met his death and was earning approximately $57 per week. He is survived by a wife and two minor children. . In Alford v. Louisiana & Arkansas Ry. Co., La.App., 38 So.2d 258, cited by the plaintiff, the court awarded $10,000 to a wife and $5,000 for each of three minor children for the death of a 48 year old husband, - earning $215.00 per month and having a life expectancy of 22 years. In the case of Tolle v. Higgins Industries, Inc., 212 La. 173, 31 So.2d 730, this Court allowed damages for the death of a 60 year old man in the amount of $12,000.00 and $7,000.00 for the benefit of a 16 year old daughter. In the present case it would seem that an award of $15,000.00 to the wife and $7,000.00 for each of the two minor children would be reasonable.

For the reasons assigned, the judgment of the Court of Appeal, First Circuit, is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of Mrs. Margaret Cram Stansbury in the amount of $15,000.00 individually, and $14,000.00 for the benefit of the minors, Merlin C. Stansbury, Jr., and Deborah Mary Stansbury, with legal interest from judicial demand until paid. All legal costs to be paid by the defendants, Mayor and Councilmen of Morgan City, Louisiana.

SIMON, J., recused.


author: HAMITER, Justice. McCALEB, Justice

text:
    228 La. 890
    Rose Marie MICKENHEIM, Wife of Roy Leslie Cathcart, v. Roy Leslie CATHCART.
    No. 41917.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Tucker & Schonekas, New Orleans, for plaintiff-appellant.
    Maurice B-. Gatlin, New Orleans, for defendant-appellee.
   HAMITER, Justice.

The pertinent facts and circumstances relating to the instant appeal are as hereinafter set forth.

.On April 10, 1953, a judgment was signed by the Civil District Court for the Parish of Orleans in favor of plaintiff, Mrs. Rose Marie Miclcenheim Cathcart, and against the defendant, Roy Leslie Cathcart, which awarded to the former a separation from bed and board, the care and custody of the minor child born of the marriage, alimony of $160 per month for the maintenance and support of herself and such child, attorneys’ fees in the sum of $500, and all costs of the suit.

From that judgment the defendant appealed to this court. However, the appeal was dismissed because of his failure to timely file the transcript and, as a consequence, the judgment became final.

Subsequently, plaintiff, through her attorneys, caused the issuance of a writ of fieri facias under such final judgment, and also caused garnishment to be served on the Mississippi Shipping Company, for the enforced collection of the sums due her which, at the time of the garnishment, were: Alimony of $160 per month from December 19, 1952 (approximately $1,100), attorneys’ fees of $500, and court costs of $129.25, all subject to a credit of $326.49.

The defendant, a seaman in the employ of the garnishee, moved to dissolve the entire garnishment. In the motion he averred that the support (alimony) for the wife and child had not been reduced to a money judgment and, further, that the garnishment was issued without his wife’s knowledge and consent. As to the attorneys’ fees and court costs, for which seizure of his wages under the garnishment was .also being attempted, mover invoked the provisions of 46 U.S.C.A. § 601 which recite: “No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court, * * * Provided, That nothing contained in this * * * shall interfere with the order by any court regarding the payment by any seaman of any part of his wages for the support and maintenance of his wife and minor children.”

After a hearing on the motion to dissolve, the district court rendered a judgment decreeing “ * * * that the garnishment issued herein is hereby revoked, annulled and set aside insofar as the items of attorneys’ fees and costs are concerned and the said garnishment to remain in full force and effect in all other respects.”

Plaintiff obtained an order for the present appeal to the Orleans Court of Appeal from the portion of such judgment which adversely affected her. And that tribunal transferred the appeal to this court for the reason that the proceeding involves alimony and, therefore, we have appellate jurisdiction of it. See 71 So.2d 575.

In our consideration of the appeal we have had no assistance from appellee (the defendant), his counsel having failed to favor us with either oral argument or a brief. On the other hand counsel for appellant, with reference to the federal exemption statute invoked by appellee under his motion to dissolve the garnishment, cite in their brief numerous authorities in support of the contention that “Attorneys’ fees and costs for the securing of a separation and alimony on behalf of the wife and child are considered a necessary and incidental expense to the obtaining of the separation and alimony and, therefore, a seaman’s wages are not exempted from seizure in satisfaction of such a claim; and it was error for the trial judge to revoke, annul and set aside the writ of garnishment insofar as these items are concerned.”

It is almost universely considered that the purpose of exemption laws generally is to protect an unfortunate debtor and save to him a means of supporting his family. And in keeping with this purpose the courts have unanimously declared, insofar as we are able to determine, that a debtor cannot avail himself of the statutory exemption to deprive his wife and children of support and maintenance for the protection of which those laws were designed. To that end they have held that an alimony judgment, constituting a judicial recognition of the husband’s duty to support, is excepted from the exemption, even when there is no specific exception to that effect recited in the statute.

As stated in 35 C.J.S., verbo Exemptions, § 1, page 8, “The exemption laws are founded on public policy. Some authorities regard the allowance of the exemption as being for the benefit of the debtor, while others regard it as in the nature of a police regulation primarily for the benefit of the community; in any event, the purpose underlying exemption legislation is the securing to the unfortunate debtor of the means to support himself and his family, the protection of the family being the main consideration." (Italics ours.)

Substantially identical language contained in 25 Corpus Juris, page 8, Section 2 was quoted with approval in the case of Young v. Geter, 185 La. 709, 170 So. 240, 107 A.L.R. 608, the court emphasizing the last statement of the paragraph.

And 130 A.L.R. page 1028, in an annotation, states: “In the three cases in point decided since the publication of the supplemental annotation in 106 A.L.R. 669 * * the courts have taken the view that inasmuch as the purpose of the exemption statute is to protect not only the husband but also his family from destitution and becoming a public charge, the exemption statutes will not, unless the contrary intention is clearly shown, be construed to enable the husband to claim its benefit against the very persons to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise would, at least in part, defeat its avowed object. * ijs * »

To a similar effect is an observation contained in 35 C.J.S., verbo Exemptions, § 83, page 115.

With reference to the legislation presently under consideration Congress was particularly careful that the -exemption thereby afforded a seaman should not be used as a means of avoiding the duty to support his family, it having incorporated therein the proviso that the immunity furnished should not interfere with the judicial enforcement of payment by a seaman of his wages for the support of his wife and children.

In view of the purpose of exemption laws generally, and since the present one evidences a specific intent to benefit the debtor’s family as well as the debtor, it would seem to follow that the objective of the statute relied on by this defendant would be defeated if his wife cannot enforce collection from his wages of the attorneys’ fees and costs expended by her which were incidental to and necessary for the obtaining of an alimony judgment. As plaintiff’s counsel appropriately comment: “ * * * To rule otherwise would, in effect, nullify the specific exception found in the instant statute; for the husband by forcing the wife into court each time she sought to collect alimony would cause her to incur legal expenses which would only reduce the alimony necessary for her support if the wife had to pay them out of the alimony she recovered.”

Courts of other jurisdictions, in at least three cases, have allowed attachment of otherwise exempt property to enforce payment of attorneys’ fees and costs expended in securing an alimony judgment, even though support and maintenance were not specifically excepted in the statutes. Hannah v. Hannah, 191 Ga. 134, 11 S.E.2d 779; Felder v. Felder’s Estate, 195 Miss. 326, 13 So.2d 823; Littleton v. Littleton, 224 Ala. 103, 139 So. 335.

Accordingly, we hold that the exemption claimed by this defendant does not apply to the demand for attorneys’ fees and costs required to be expended by plaintiff in obtaining the award for support and maintenance of herself and child.

It does not appear, however, that the attorneys’ fees and costs incidental to the securing of plaintiff’s judgment of separation are. similarly excepted from the exemption. They do not fall in the same category as those relating to the recovery of alimony and are covered by neither an implied nor an expressed exception in the statute.

Since the instant attorneys’ fees of $500 and court costs of $129.25 were awarded in the separation suit in lump sums, and the record of that proceeding is not before this court, it is impossible for us to ascertain what portion of such fees and costs relate to the obtaining of the alimony judgment. For this reason the cause must and will be remanded to the trial court in order that it can determine the attorneys’ fees and costs attributable. to the alimony judgment. Thereafter that tribunal shall further sustain the garnishment to the extent of the amounts thus determined.

For the reasons assigned that part of the judgment appealed from is reversed and set aside and the case is remanded to the district court for further proceedings according to law and . consistent with the views herein expressed. ' Costs of this appeal shall be paid by appellee.

McCALEB, Justice

(concurring).

I am in agreement with the principal ruling herein that the exemption claimed by defendant does not apply to the costs and other expenses, including attorney’s fees if they are recoverable, incurred by plaintiff in obtaining the award of alimony for herself and her child. Nor do I object to the remand of this case for the purpose of having the trial court determine what portion of the judgment for attorney’s fees and costs are attributable to the obtention of the alimony decree, since it is my understanding that this Court is not now passing judgment on the question, either as to whether the judgment for attorney’s fees bears against defendant individually or only as head and master of the community formerly existing between the parties (see Benedict v. Holmes, 104 La. 528, 29 So. 256; Spiller v. Spiller, 170 La. 813, 129 So. 212; Alpha v. Aucoin, La.App., 167 So. 835; Collins v. Collins, 194 La. 446, 193 So. 702; August v. Blache, 200 La. 1029, 9 So.2d 402 and Glorioso v. Glorioso, 223 La. 357, 65 So.2d 794), or whether it is now possible, in view of the fact that the final judgment for attorney’s fees was awarded in a lump sum for services rendered in securing the separation decree and the other incidents thereto, to segregate the award by adducing evidence to show that a definite portion of it is attributable to services rendered for obtaining alimony.

I therefore respectfully concur.


author: HAWTHORNE, Justice.

text:
    228 La. 899
    STATE of Louisiana v. Ed CLARK.
    No. 42413.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Philo Coco, Earl Edwards, Marksville, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., Marksville, for appellee.
   HAWTHORNE, Justice.

Ed Clark, charged in a bill of indictment with the crime of manslaughter,, was tried before a jury, found guilty, and sentenced to serve a term of one year in the state penitentiary. He has appealed.

Prior to trial, two statements were made by the defendant. One of these statements was made under oath at the coroner”s inquest, and the other was made in the office of the sheriff on the day of the alleged killing. Both statements were taken down and transcribed by a stenographer, Mrs. deNux. It is conceded that the substance of these two statements is the same.

During the trial of the case Mrs. deNux was put on the witness stand by the State and asked to read to the jury the statements made by defendant. Counsel for defendant objected to the reading of these statements on the ground that it had not been affirmatively shown that they were free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. In other words, defense counsel was of the opinion that the proper foundation for their admission had not been laid under Article 451 of the Code of Criminal Procedure. The trial judge, however, permitted the reading of these statements without a foundation’s being laid by the State. In his per curiam he informs us that he was of the opinion that they .were admissions as that term is used in Article 449 of the Code of Criminal Procedure, R.S. 15:449, and could in no way be construed as confessions, and that consequently it was not necessary for the State to show that they had been given voluntarily by the accused. ■ To. this ruling counsel for defendant reserved Bills- of Exception Nos. 5 and 6.

The two statements by the accused which are the basis of the two bills before us show that the defendant and the deceased got into an argument over which one could “handle his liquor” better, during which both men became very angry and started cursing and fighting. In these statements the defendant said, among other things:

“ * * * Truthfully I don’t remember hitting him but I guess I hit him with the bottle and when he got up I kicked him down. I jumped on him with my knees and hit him in the face and jumped on him with my knees. * * * I jumped down and up and down on him and the first time when he was getting up, I kicked him. * * * ”

If the statements in the instant case are confessions, the proper foundation had to be laid for their introduction in evidence. Art. 451, Code Cr.Proc. If the statements are considered as admissions, they are admissions of inculpatory facts. This court in State v. Hayes, 162 La. 310, 110 So. 486, 489, said:

“Since, when a confession is objected to as one not voluntarily made, the state must show that it was so made, before it can be received in evidence, and the defendant must be given an opportunity to offer in rebuttal his evidence, we think the same rule governs the admissibility of incriminatory statements, whether they are offered as substantive or impeaching evidence. ‡ * %

In the recent case of State v. Robinson, 215 La. 974, 41, So.2d 848, this court held that admissions involving the existence of a criminal intent or inculpatory facts are governed by the rules applicable to confessions. See Art. 454, Code Cr.Proc.; State v. Crittenden, 214 La. 81, 36 So.2d 645.

It was therefore error for the trial court to allow the St.ate to read to the jury defendant’s two incriminatory statements without first showing that they were freely and voluntarily made under the provisions of Article 451 of the Code of Criminal Procedure.

There are other bills in the record, but ■ we need not consider them on this appeal.

The conviction and sentence are reversed and set aside, and the defendant is granted a new trial.


author: SIMON, Justice. McCALEB, Justice HAWTHORNE, Justice

text:
    228 La. 903
    Josephine KOERBER v. CITY OF NEW ORLEANS.
    No. 42224.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Clem H. Sehrt, Edward J. Boyle, Dudley A. Philips, Jr., Amos L. Ponder, New Orleans, for plaintiff and petitioner.
    Henry B. Curtis, City Atty., Luther E. Hall, Joseph H. Hurndon, Asst. City Atty., New Orleans, for respondent.
   SIMON, Justice.

This cause comes to us on certiorari, or writ of review, to the Court of Appeal, Parish of Orleans, and involves a petitory action instituted by plaintiff, Josephine Koer-ber, against the City of New Orleans, claiming title to approximately four acres of land situated within the limits of the Moisant International Airport in Jefferson Parish, owned and operated by the City of New Orleans.

The City of New Orleans answered and denied the various allegations of plaintiff’s petition, possession in good faith, and the prescription periods of 1, 2, 5, 10 and 30 years, respectively. Defendant also invoked the plea of waiver and estoppel, pleading alternatively that in the event plaintiff had any rights whatsoever in and to the property said rights should be limited to a claim for its market value as of the time it was taken by the City in the year 1941.

After a trial on the merits, the district court rendered judgment decreeing plaintiff the owner of the property and thus entitled to just and fair compensation therefor, its value to be determined as of September 27, 1951, the date defendant filed its answer to plaintiff’s suit. All pleas filed by the defendant were dismissed, except its alternative plea recognizing its right to expropriate the property upon complying with the legal formalities and paying just and fair compensation. The case was ordered reopened for the purpose of determining and fixing the compensation to be paid.

From this judgment the defendant appealed to the Court of Appeal, Parish of Orleans, which court affirmed the judgment of the district court insofar as it decreed plaintiff the owner of the property, and in all other respects reversed and amended said judgment so as to maintain the City of New Orleans in its possession and use of the property in connection with said airport. It further relegated plaintiff to an action in damages against the City of New Orleans for the value of the property at the time of its taking for said public purpose.

Both parties applied for writs of review: the plaintiff contending in her application ■that the value of the property should be fixed as at the time of a lawful taking of the property for public purposes; the defendant contending in its application that its plea of 10-year prescription should be maintained. We refused the defendant’s application for writ of certiorari because it did not disclose an adequate cause for the granting thereof. We granted the plaintiff’s application.

Hence, the sole issue before us is whether the market value of the property should be fixed as of 1941 or as of 1951, or, as contended by plaintiff, as of the date of the lawful exercise of the right of eminent domain by the defendant.

It is not disputed that ownership of the property is vested in plaintiff; that the City of New Orleans believed the property formed a part of a larger tract known as the Pailet Tract which the city purchased on October 30, 1941, from the Liberty Homestead Association in liquidation for the price of approximately $50 per acre; and that the City immediately possessed, occupied and used the entire area, including plaintiff’s property, and began construction of the air-' port thereon. Other portions of property forming a part of the airport were-obtained by mesne conveyance and by expropriation suits filed under the provisions of LSA-R.S. 33:4621, granting to municipalities and parishes the right to expropriate private property situated outside their corporate limits by and with the consent of the police jury of the parish in which the property is situated. However, the City of New Orleans unintentionally failed to obtain the plaintiff’s property by deed translative of title or by expropriation proceedings consented to by the police jury of Jefferson Parish.

The record discloses that in January, 1946, the airport was dedicated to public use; that by letter addressed to her attorney, dated October 29, 1946, plaintiff was informed that the property to which she claimed ownership was actually located within the limits of and was being used by Moisant Airport; that plaintiff failed to judicially assert her rights of ownership or demand compensation therefor until March 25, 1949, when she first instituted a suit claiming ownership of said property, which suit she later moved to dismiss. The present suit was filed on November 21, 1949. We observe that claims of ownership were asserted by plaintiff in conversation and correspondence had between the parties beginning June, 1947.

Plaintiff contends that the court of appeal is in error in holding that the value of her property should be fixed as-of 1941 since the taking thereof at that time was an unlawful taking. She urges that its value be fixed as of the time of a lawful expropriation, which, plaintiff concedes is the date defendant filed its answer incorporating therein its demand for expropriation, i. e., September 27, 1951. In support of her position, she cites the'cases of New Orleans Ry. & Light Co. v. Lavergne, 138 La. 949, 70 So. 921; City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675; State v. Landry, 219 La. 721, 53 So.2d 908.

The case, of New Orleans Ry. & Light Co. v. Lavergne, supra, was instituted by plaintiff for the expropriation of certain lots -of ground that were low marsh land of very low value until plaintiff Company filled and reclaimed it and constructed thereon facilities for use as a railroad. In awarding damages the jury included the enhanced value occasioned by these improvements. In reducing said award, this court said [138 La. 949, 70 So. 924] :

“The jury should have allowed the defendants the market value of the land at the time this expropriation suit was filed, without regard for the improvements put upon it by the railway company. * * * " (Italics ours.)

In the case of City of New Orleans v. Moeglich, supra, the' plaintiff sued to expropriate a small strip of land to be used-for a public street. The sole issue therein was the fixing of the value of the property sought to be expropriated. As to its naked value, the parties were in full accord. But defendant contended that damages should be considered on the basis of the contemplated subdivision thereof into residential lots and placing same on the market. In fixing the value of the property, this court said [169 La. 1111, 126 So. 687]:

“It has been frequently, held -by this court that the criterion of value is the market value of the property at the date of the institution of the suit for expropriation, taking into consideration the use to which the property may be applied and all the uses to which it is adapted, excluding any increment of value occasioned by the proposed construction work or work of public utility for which the property is wanted. Texas Pacific [Missouri Terminal R. of New Orleans] v. Elliott, 166 La. [347] 348, 117 So. 275; Louisville & N. R. Co. v. R. E. E. De Montluzin Co., 166 La. 211, 116 So. 854.

“In the last mentioned case it was held that contemplated subsequent subdivision of property and sale of lots after expenditure of considerable sums on improvement cannot serve as basis of valuation at date of institution of expropriation suit for railroad right of way as partaking too much of character of speculation.”

The State of Louisiana instituted the case of State v. Landry, supra, to expropriate a parcel of land for highway purposes. In determining the measure of damages, we said [219 La. 721, 53 So.2d 910]:

“The rule is well settled that the measure of value of property expropriated for public use is the market value of the property at the date of institution of the expropriation suit. * * * But since the State has delayed the trial of this case for such a long time, and elected to -file separate proceedings for each parcel of ground and to dismiss its original suit, the first proceeding is to be considered abandoned, and as though it had never been filed. * * * Of necessity, therefore, the value of the land at the time of the filing of the second suit will control!’ (Italics ours.)

It can be readily seen, therefore, that in the cases relied upon by plaintiff the taking of the property was legally effected as of the date each expropriation suit was filed, and the value thereof was determined as of that date.

On the other hand, defendant strenuously urges that the compensation due plaintiff for the property is its market value prevailing as of the date of the actual entry, possession, occupancy and use by the defendant, or October 30, 1941. In support of its contention, defendant relies primarily upon the cases of Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686; Jefferson & Lake Ponchartrain R. Co. v. City of New Orleans, 31 La.Ann. 478; and St. Julien v. Morgan L. & T. R. Co., 35 La. Ann. 924.

In the case of Gumbel v. New Orleans Terminal Co., supra, plaintiff filed a suit against defendant Railroad Company to recover compensation or, in the alternative, damages for use and occupancy in the land appropriated by the defendant. The suit was filed at a time when the defendant had possessed and used a portion of the land for a period in excess of thirty years for two switch tracks laid thereon without any objection or protest by the then landowner or his vendee from whom plaintiff purchased the property. The first protest made against defendant’s use of the land was made by plaintiff some thirteen years after he had acquired its ownership. Under this factual situation we held that the right of the original owner and vendor to seek recovery of compensation and damages, if any, as a result of defendant’s appropriation was purely a personal right, barred by the prescription of ten years ; and that such right does not become invested in plaintiff as purchaser unless expressly transferred with the property, or unless the purchaser is subrogated thereto. In that instance we maintained the plea of prescription of ten years and dismissed plaintiff’s demand.

In the case of Jefferson & Lake Pontchartrain R. Co. v. The City of New Orleans, supra, plaintiff, alleging its ownership, the forcible, wrongful and illegal entry upon its land by the defendant and the cutting and excavating of a drainage canal thereon, sought an injunction restraining the defendant City from using said drainage outlet, and damages as a result of defendant’s wrongful, forcible and illegal act of entering upon its property. The defendant City pleaded its statutory right of entry for public purposes, the waiver of plaintiff’s right to injunctive relief resulting from laches and negligence on its part, and the prescription of one and two years to the claim for damages. Firstly, we upheld the statutory right of the defendant City to enter upon plaintiff’s property and construct the public works complained of; secondly, because of the laches and negligence of plaintiff in asserting its rights, we denied the injunctive relief sought by it; and thirdly, we sustained the prescriptive pleas of one and two years, barring the right of plaintiff to recover damages as a result of the alleged wrongful, forcible and illegal entry of defendant City.

The case of St. Julien v. Morgan L. & T. R. Co., supra, which has been termed by us as a.leading case on the subject matter, involved a petitory action and demand for the recovery of rents for occupancy and use of a portion of plaintiff’s land for a roadbed by defendant Railway Company. It appeared that the defendant, without plaintiff’s permission or consent and'without purchasing or expropriating the land, constructed its railway thereon and has since continuously operated it.

We held that plaintiff, having permitted the use and occupancy of his land for the construction of public works thereon, without resistance or even complaint, could not afterwards require its demolition, prevent its use, or treat thé defendant as a tenant. However, we concluded that plaintiff was not debarred from an action for damages for the taking of the land and for its value. In other words, we restricted plaintiff to his right of compensation and remitted him to this action alone. We therein stated;

“ ‘ * * * A land owner’s delay in enforcing his rights does not effect a waiver of his right to prepayment; but a clear acquiescence in the company’s taking possession and constructing its works, under circumstances making it his duty to resist the entry, if he intended afterwards to¡ set up that it was illegal, will be treated as a waiver. The waiver, however, while depriving him of the right to dispossess the company, does not deprive him of the right to damages under the special remedy.’ ”■ (Italics ours.)

It is clearly apparent that the factual situations encountered and the relief prayed for in the above cited cases relied upon by the defendant are vastly different from that of the instant case. The legal principles as announced therein and peculiarly applied to these cases are inapposite and not applicable to the case at bar and afford defendant no comfort in its contention that the value of plaintiff’s property should be fixed as of October 30, 1941, the date of the unlawful taking of plaintiff’s property.

It has long been a fundamental principle deeply embedded in our law and jurisprudence that title to realty can not be established by waiver or estoppel; for one can never be divested of his title to realty except in the manner prescribed by law. See Snelling v. Adair, 196 La. 624, 199 So. 782; Pan American Production Co. v. Robichaux, 200 La. 666, 8 So.2d 635; Buckley v. Catlett, 203 La. 54, 13 So.2d 384; Waterman v. Tidewater Associated Oil Co., 213 La. 588, 35 So.2d 225; Harrell v. Stumberg, 220 La. 811, 57 So.2d 692.

In the case of Bishop v. Copeland, 222 La. 284, 62 So.2d 486, 489, we said:

“ * * * the asserted inaction of plaintiffs could not constitute an estoppel as it is the firmly established jurisprudence of this court that mere silence and delay cannot effect a loss of title to property other than by the laws of prescription. * * * ”

Accordingly, considerations of public policy, not less than the suggestions of natural justice, and under the circumstances presented in the case at bar, plaintiff cannot be permitted to reclaim the property in question, require the demolition of the public works, or prevent its use by the defendant City, being restricted only to her right to compensation for the market value of the land taken. Being in full accord with the principles announced in the cases cited and relied upon by plaintiff, and recognizing that her fee simple title had never been divested until a lawful taking thereof, we conclude that the value of said property for compensation purposes should be fixed and determined as of the date of its lawful expropriation, which is, in this instance, September 27, 1951, the date on which defendant filed its answer to plaintiff’s suit and therein, invoking its power to eminent domain, incorporated its suit for expropriation. We further conclude that this value should be determined without regard for the value of the improvements placed thereon by defendant City.

For the reasons assigned, the judgment of the Court of Appeal, Parish of Orleans, is reversed, set aside and annulled; and it is hereby ordered, adjudged and decreed that the judgment of the Twenty-fourth Judicial District Court be, and the same is hereby reinstated and affirmed. Costs to be borne by defendant.

PONDER, J., recused.

HAWTHORNE and McCALEB, JJ., dissent with written reasons.

McCALEB, Justice

(dissenting).

I am in accord with the view of the Court of Appeal. See Koerber v. City of New Orleans, La.App., 76 So.2d 466. It appears to me that the majority err in considering this case as though it were an expropriation suit involving the taking of plaintiff’s property when factually the land had long before been appropriated to public use. This, of course, did not .operate as a divestiture of plaintiff’s title, which remains unaffected, for defendant, although vested with the power of eminent domain, did not file an expropriation proceeding but appropriated the land to a public use by building an airport thereon and, unquestionably, plaintiff has had knowledge of such appropriation for many years. It is settled by a long line of cases that, under such circumstances, the land has been burdened with a servitude created thereon by plaintiff’s implied assent to the public use and that, although the city has not acquired a fee title to the property, plaintiff cannot now treat the city’s occupancy as tortious, being restricted to a personal action for compensation for the value of the servitude and such other damages that she may have sustained as of the date of its establishment. See St. Julien v. Morgan L. & T. R. Co., 35 La.Ann. 924; McCutchen v. Texas & P. Ry. Co., 118 La. 436, 43 So. 42; Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562, 139 Am.St.Rep. 537; Pons v. Yazoo & M. V. R. Co., 131 La. 313, 59 So. 721; Roussel v. New Orleans Ry. & Light Co., 152 La. 517, 93 So. 758 and Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686.

In Pons v. Yazoo & M. V. R. Co., supra, the court stated [131 La. 313, 59 So. 729]:

“Under repeated decisions, plaintiff cannot recover over and above the value of the land (now in possession of defendant for railroad use) at the time it went into the possession and use of the defendant.”

In Gumbel v. New Orleans Terminal Co., it was observed [197 La. 439, 1 So.2d 689]:

* * * The right to compensation for the value of the property taken and damages to the adjacent land is limited to the value of the portion of the property occupied and determined as of the date when the defendant occupied and began to use the property, and for any damages which might be done to the remainder of the property by such use.” (Italics mine.)

That the above-stated rule is sound will be readily seen when consideration is given to the fact that the taking, occupancy and use of the land is not regarded as illegal in the eyes of the law, there being the establishment of a servitude thereon for public use with the implied consent and acquiescence of the owner by virtue of her long silence notwithstanding full knowledge of the appropriation. Hence, since the servitude is valid, the compensation due therefor is necessarily fixed as of the date of its creation.

I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

The majority opinion appears to be based on the premise that the City of New Orleans lawfully expropriated the property involved here when it filed its answer in this suit on September 27, 1951, and incorporated in that answer its demand for expropriation. This reasoning completely overlooks the fact that the City of New Orleans actually took possession of the ■ property in 1941 when the City bought the Pailet Tract, which was thought to include the land in dispute here, and immediately possessed and used the entire area, including plaintiff’s property, and began construction of the airport thereon.

If the City of New Orleans possessed the power in the instant case to expropriate plaintiff’s property for airport purposes and is not a trespasser, it is my view that the judgment of the Court of Appeal, 76 So.2d 466, relegating plaintiff to an action in damages for the value of the property at the time of its taking for public purposes is correct and is supported by the following cases and the authorities cited therein: St. Julien v. Morgan’s Louisiana & T. Railroad Co., 35 La.Ann. 924; Pons v. Yazoo & M. V. R. Co., 131 La. 313, 338, 59 So. 721; Roussel v. New Orleans Ry. & Light Co., 152 La. 517, 93 So. 758; Gumbel v. New Orleans Terminal Co., 197 La. 439, 1 So.2d 686.

      . City of New Orleans v. Larroux, 1943, 203 La. 990, 14 So.2d 812.

      . LSA-Civil Code Article 3544.

      . Civil Code Articles 3536 and 2630.

      . Taylor v. New Orleans Terminal Co., 126 La. 420, 52 So. 562.

      . Hence, the eases relied on as sustaining the ruling of the court, viz., New Orleans Ry. & Light Co. v. Lavergne, 138 La. 949, 70 So. 921; City of New Orleans v. Moeglich, 169 La. 1111, 126 So. 675 and State v. Landry, 219 La. 721, 53 So.2d 908, which merely set forth the general rule that in expropriation proceedings the value of the property is to be fixed as of the date of the expropriation suit, are clearly inapplicable.


author: HAMITER, Justice.

text:
    228 La. 920
    Irvin OSTER v. KRAUSS COMPANY, Limited.
    No. 42071.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Kepper, Moulin & Kepper, Tucker § Schonekas, New Orleans, for plaintiff-appellant.
    Milling,. Saal, Saunders, Benson & Woodward, New Orleans, for defendant-appellee.
   HAMITER, Justice.

Under a- written ■ contract of, lease from the defendant company, of date September 6, 1950 and being for a term of five years, plaintiff operated a luncheonette and cafeteria in a portion of the lessor’s store on Canal Street in "New Orleans until such contractual relationship was terminated by mutual agreement in the latter part of February, 1953.

In accordance with the lease’s provisions the lessee daily turned over to the lessor all of the receipts of the business; and from them the latter undertook to pay certain expenses of the former, including the wáges of his employees. Then on the 15th day of each month the lessor remitted by check to the lessee the funds received by it less the sums expended for his account during the preceding month, at the same time furnishing to him a statement on which was itemized all of the receipts and disbursements.

On May 8, 1953, a few months after the cancellation of the lease, the lessee instituted this suit to recover from the lessor the sum of $2,369.01 which allegedly represented receipts from the luncheonette and cafeteria that were used by the defendant to pay Christmas bonuses in 1951 and 1952 to employees of plaintiff without his .consent and over his objections. Answering, the defendant denied liability and averred affirmatively that plaintiff had agreed to the expenditure of the funds.

At the conclusion of the trial of the merits, in documents verified by affidavits, the defendant specially pleaded estoppel, laches, and accord and satisfaction, all in bar of plaintiff’s demand. To these pleas plaintiff’s counsel objected on the ground that they came too late. The objection was overruled.

Later, the district judge rendered and signed a judgment dismissing the suit, he stating therein that “plaintiff has failed to prove his claim under the contract and that, in addition, there was an accord and satisfaction which precludes recovery on his part.” The plaintiff is appealing.

Our careful and thorough examination of the testimony contained in the record convinces us that the judge correctly concluded that an accord and satisfaction has barred appellant’s demand.

Mr. Leon Heymann, president of the defendant company and with whom plaintiff principally dealt with respect to the making, amending, operating, and cancelling of the lease, testified that occasionally, when the monthly settlements were effected, errors were disclosed by the statements furnished and were called to defendant’s attention; but that these were promptly rectified. Again, when plaintiff sought to cancel the lease in February, 1953, although the required notice had not been given, such witness, acting for the company, agreed to the cancellation and also negotiated with him for a satisfactory settlement of the contractual relationship. This settlement included the refunding by defendant to plaintiff of substantial sums, evidenced by five separate checks, which were for unused portions of group. insurance on his employees, a state license, a service'charge on an ice-making machine, and merchandise 'purchased by' him.

Heymann further- said that never when the.numerous monthly statements and .checks were issued (except as to the two in which the bonus deductions here complained of were made), or during the negotiations leading to the final settlement, did the plaintiff mention to him or to any other company official that a credit for the deducted Christmas bonuses should be allowed. And he was emphatic in his statement that the ultimate negotiations were undertaken on the basis of a - complete settlement between the parties; that he would not have refunded to plaintiff the sums mentioned had he been informed that the claim involved in this suit would be urged. •

' The testimony of the witness Heymann is corroborated by the monthly' statements and remittances and the final refunds (the statements and checks were introduced into evidence), and also by the testimony of the plaintiff himself. The latter testified that his only protest concerning the deductions for bonuses was when each of the two occurred; that he did not at any other time complain about them because he thought it would be futile to do so;' that he received the various itemized monthly statements; and that all of the monthly remittances were deposited to his account. His testimony as to the final settlement refunds was substantially the same .as that of Heymann’s; and it also reveals that there was no obligation on the part of the defendant, under the lease, to make such a settlement. He further stated that when thus terminating their; business relationship he did not say anything about the present claim even though at that time he knew he was going to file suit to attempt to recover the amount of the bonus deductions.

To summarize, the evidence conclusively discloses that plaintiff received the monthly statements and accepted and used the accompanying remittances, all of which were obviously deemed by the company to be complete monthly accountings and settlements; and that thereafter he entered into negotiations for and he concluded a final accounting of his affairs with'the de-fetídant, accepting funds in the discharge of all claims then presented and without even suggesting that he was entitled to credit for the bonus deductions which, incidentally, represented payments made to his own employees and for his direct benefit. Under these circumstances he is precluded from recovering the amount herein demanded. See Berger v. Quintero, 170 La. 37, 127 So. 356, Henriques v. Vaccaro, 220 La. 216, 56 So.2d 236 and Davis-Wood Lumber Company, Inc. v. Farnsworth & Co., Inc., La.App., 171 So. 622 (cited with approval in the first two cases).

But counsel for plaintiff insist that defendant’s plea of accord and satisfaction, filed at the conclusion of the trial, should not be considered at all. Their objection to the plea when offered, as aforestated, was that it came too late. In this court they complain that it does not carry the certificate, required by LSA-R.S. 13:3601(6), that it was filed in good faith and not merely for the purpose of delay.

The answer to the first quoted objection is that the plea in question is in the nature of a peremptory exception which may be tendered in every stage of the action previous to the definitive judgment. Code of Practice Article 346.

As to the lack of a certificate reciting that the plea was filed in good faith and not merely for the purpose of delay, about which plaintiff secondly complains, the original source of the relied on and above cited statutory provision was Act 157 of 1912 wherein the requirement was that “Every exception which may be filed in advance of the filing of an answer, shall be accompanied by a certificate * * Hence, it might well be concluded that the provision invoked by plaintiff has reference only to an exception filed in advance of the answer, not to one offered after trial as here. And especially does this seem logical when it is considered that the instant plea could in no manner have occasioned a delay in the proceeding. (Italics ours.)

However, it is not necessary for us to so conclude, for attached to the plea of accord and satisfaction of the defendant company is an affidavit of its president that the allegations therein made are true and correct; and such affidavit, verifying a defense based on evidence already adduced, was the equivalent in effect to a certificate of good faith. See Brown v. Mayfield, La.App., 45 So.2d 912.

Since the discussed plea of the defendant is meritorious a consideration of the issues relative to plaintiff’s rights under the lease contract becomes unnecessary. To this counsel for plaintiff seemingly agree, for in their brief they state: “The District Court, in its reasons for judgment, stated it found that the plea of accord and satisfaction was good, which would necessarily result in a judgment for the defendant, if correct, regardless of the interpretation to be placed on the lease. * * *”

For the above reasons the judgment of the district court is affirmed.


author: FOURNET, Chief Justice.

text:
    228 La. 927
    STATE of Louisiana v. Henry C. JOYNER.
    No. 42445.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Richard S. McBride, Jr., New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., New Orleans, for appellee.
   FOURNET, Chief Justice.

The defendant, unattended by counsel, having pleaded guilty to the charge of theft •of an automobile, and having withdrawn that plea with the court’s permission prior to trial when additionally charged as a multiple offender, contends he was improperly convicted for the reason that the trial judge permitted, during his trial and over his objection, the introduction of evidence of the minutes of the court reflecting this plea and its withdrawal.

In his per curiam to the bill reserved •when the minute entries were admitted (the only bill reserved), the trial judge states he considered the plea to be a judicial confession of guilt and that, as such, the jury was entitled to have it as evidence for whatever weight they might decide to give it. As authority he cites from other jurisdictions Johnson v. State, 196 Miss. 402, 17 So.2d 446; Roberts v. State, 145 Neb. 658, 17 N.W.2d 666; People v. Steinmetz, 240 N.Y. 411, 148 N.E. 597; State v. Carta, 90 Conn. 79, 96 A. 411, L.R.A. 1916E, 634; and Morrissey v. Powell, 304 Mass. 268, 23 N.E.2d 411, 124 A.L.R. 1522.

A review of these cases, as well as many others to be found on the subject, discloses they reflect the minority view. The majority of the jurisdictions support the view that evidence of a plea of guilty and its withdrawal is inadmissible. This view is predicated “upon the broad principle that to permit such withdrawal to be accompanied with the privilege on the part of the prosecution of later establishing the same as an admission or confession of guilt would result in the destruction or serious impairment of whatever benefits accrued to the defendant from withdrawal of his plea of guilty, and upon the further ground that withdrawal of a plea of guilty is equivalent to an adjudication that such plea is annulled and of no force and effect, and hence ceases to be evidence.” 124 A.L.R. 1527. See, also, the authorities therein cited, and 2 Wharton on 'Criminal Evidence, Eleventh Edition, 976, Section 587.

We think the majority view is sound and more consonant with our concept of the constitutional rights of an accused. Where the plea of guilty is withdrawn, the defendant stands for trial upon a plea of not guilty, and is entitled to all the safeguards and presumptions of innocence which the humanity of the law extends to an individual whose life or liberty is at stake. One such right is that he is presumed to be innocent .until proved guilty beyond a reasonable doubt, and the state has the burden of proving that guilt.

As pointed out by the United States Supreme Court in Kercheval v. U. S., 274 U.S. 220, 47 S.Ct. 582, 583, 71 L.Ed. 1009, a leading case on this subject, “The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto.”

It is our conclusion, therefore, that the introduction in evidence of minute entries disclosing the former plea of guilty and its withdrawal constitutes reversible error. It could have no other effect than to prejudice the jury.

For the reasons assigned, the conviction and sentence are annulled and set aside and the case is remanded for a new trial.

      . If, as pointed out by the learned trial judge, the minute entries of the plea and its withdrawal were admissible as a confession, the state failed to follow the rules prescribed by Article 451 of the Code of Criminal Procedure, LSA — R.S. 15:451, i. e., to affirmatively show it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.


text:
    228 La. 931
    H. W. WALTERS, Cal E. Swanson and Caddo Lumber & Supply Company, v. Eugene J. COEN.
    No. 42053.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Eugene J. Coen, Shreveport, for defendant-appellant.
    Frederick J. Stewart, Shreveport, for plaintiffs-appellees and appellants.
   HAWTHORNE, Justice.

Plaintiffs, as assignees of Mrs. Marie Holley, brought this suit to recover from Eugene J. Coen $3250.11, which they allege is the value of certain repairs, alterations, and improvements made by Mrs. Holley, as lessee, to the premises at 2122 Southern Avenue in Shreveport, Louisiana, owned by the defendant Coen.

The district court awarded plaintiffs $2150.11, the value of all items claimed except an item of $1100 allegedly paid for carpentry work. From this judgment defendant appealed. Plaintiffs appealed from that part of the judgment rejecting their claim of $1100.

Plaintiffs’ suit was originally dismissed by the district court on exceptions of no cause and no right of action. On appeal, however, that judgment was reversed and' the case remanded for trial on the merits. Walters v. Coen, 223 La. 912, 67 So.2d 175. It is now before us on the merits.

Coen, as the owner of the premises at 2122 Southern Avenue, in 1950 by written instrument leased to Mrs. Marie Plolley this property to be used as a dwelling or as a convalescent home. Mrs. Holley began the operation of a convalescent home for the aged. To comply with fire and health regulations required of her by the authorities she contracted with plaintiffs for repairs, alterations, and improvements, and these were made.

Mrs. Holley was unable to pay for all .these improvements and shortly after-wards went into bankruptcy. The trustee in bankruptcy disclaimed all interest in the lease and refused to take it for administration in the bankruptcy proceedings. This had the effect, as pointed out in our previous decision, of revesting in Mrs. Holley whatever interest and title she had in the lease, as though there had been no proceedings in bankruptcy. Walters v. Coen, supra. Some two or three days after the trustee’s disclaimer, Coen took possession of the premises and leased them to another person for a term of three years to be used as a convalescent home for the aged, and the property was being used by this lessee for this purpose at the time of the trial of the case on its merits in the court below.

After Mrs. Holley’s discharge in bankruptcy, she made written demand on Coen for the return of the improvements made to the property or payment for their value. This demand was ignored by Coen. A short time afterwards Mrs. Holley assigned to plaintiffs in this suit whatever right she might have against Coen based on the improvements, alterations, reconditioning, and repairs made to his premises by her as his lessee. The consideration for this assignment was the amount of her indebtedness to the plaintiffs for the materials and supplies furnished and the labor performed by them.

Nearly all of the appellant Coen’s contentions on this appeal were fully answered by this court in its opinion overruling the exceptions of no cause and no right of action and remanding the case. Coen now maintains that this court erred in overruling the exceptions of no cause and no right of action, and has devoted almost his entire argument and brief to this contention. It would serve no useful purpose to reiterate his contentions here, as the law of the case was announced in our previous opinion. See Walters v. Coen, supra.

In that opinion we held, among other things, that plaintiffs had stated a cause of action by alleging that the work was done to Coen’s property by the lessee, Mrs. Holley, to comply with fire and health regulations for convalescent homes, a use which was specifically permitted in the lease; that demand was made upon Coen for the return of the improvements or their value, and that this demand was ignored by Coen. The court also pointed out in the prior opinion that the right of Mrs. Holley as lessee under Article 2726 of the Civil Code was not abrogated when she breached the lease, and that the assignment to plaintiffs of Mrs. Holley’s rights as lessee was valid in view of the allegation in plaintiffs’ petition that all interest in the lease was disclaimed by the trustee in bankruptcy. Id.

Coen has raised only two new contentions on this appeal. He argues that he should not be required to pay the value of the improvements because on October 23, 1951, after this court had held that plaintiffs’ petition stated a cause of action and remanded the case, he wrote to the plaintiffs requesting them to remove the improvements made by Mrs. Holley. To us this letter seems to be an afterthought. It was written almost two years after Mrs. Holley had requested the right to remove the improvements or payment for their value, long after the instant suit had been filed, and some time after Coen had taken possession of the premises and leased them to another for the conducting of a convalescent home. Moreover, even in this letter he requested these parties to remove only certain of the improvements, such as celotex and sheetrock, and did not include all of the improvements. Frankly,-we think that this Jetter was not entirely in good faith and cannot be taken seriously.

Coen also complains that under the lease to Mrs. Holley written consent of the lessor had to be first obtained before she could alter, repair, or remodel the leased premises, that she caused these repairs to be made without first obtaining his written consent, and that consequently he is not liable for the value of these repairs. There is no merit in this contention. As. pointed out above and mentioned in our previous opinion in this case, the property was leased as a dwelling or as a convalescent home, and in making these repairs Mrs. Holley was simply complying with regulations of the state fire marshal and the board of health which required that such work be done. Furthermore, the trial judge correctly found that Coen knew that the repairs were being made, and that he thus waived this provision of the lease.

The trial judge found that all plaintiffs’ claims except one had been fully established. However, he denied the claim of $1,100 for carpentry work on the ground that the amount of this claim had not been proven with legal certainty. We think that the plaintiffs proved this claim as well as all the others, and should have judgment for the total amount sought.

There is no question that the carpentry work was done to comply with fire and health regulations, and Mrs. Holley testified that on the recommendation of Coen she employed a carpenter named Henry George, who was working for Coen and whom Coen called for her. This carpenter with three other carpenters and a helper performed the work, much of which was done at overtime rates at night and on weekends because the requirements of the authorities had to be met promptly. Mrs. Holley further testified that she paid these carpenters $1,100 in cash, and that she knew this amount was correct because she borrowed the money. She said that she made records of these payments but was unable to locate them because she turned them over to an attorney, now deceased, who represented her in the bankruptcy proceedings. She stated also that she did not list the carpenter George as a creditor in the bankruptcy proceedings because she had paid him.

We are impressed with Mrs. Holley’s testimony, particularly in view of the fact that according to the record she has no interest in this litigation, having assigned all of her claim against Coen to the plaintiffs, as stated above. If she was incorrect in her statement of the amount, Coen could have easily called George as a witness to contradict or disprove her statement. George lived in Shreveport, was Coen’s carpenter, and had been doing work for him for some time. Moreover, as far as we can ascertain, George himself has never asserted any claim for the work he performed for Mrs. Holley.

It is therefore clear that plaintiffs are entitled to this item of $1,100, and the judgment will be amended accordingly.

The judgment is amended by increasing the award to plaintiffs to $3250.11, with legal interest from judicial demand until paid, and as thus amended the judgment is affirmed, defendant to pay all costs.

       After the remand plaintiffs by supplemental petition reduced their claim to the amount above set forth.


text:
    228 La. 939
    STATE ex rel. Michael, George and Richard LANGENSTEIN v. CITY OF NEW ORLEANS.
    No. 39228.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Harry R. Cabral, Sr., Harry R. Cabral, Jr., Lewis R. Graham, New Orleans, for plaintiffs-appellants.
    Henry B. Curtis, City Atty., Edgar Corey, Posey R. Bowers, Asst. City Attys., New Orleans, for defendant-appellee.
   HAMITER, Justice.

Plaintiffs, as the owners and operators of a business in the premises known^ as 1300 Arabella Street in the City of New Orleans, demanded in this action injunc-tive relief against the named municipality and also against Plonorable Harold J. Moore, late Judge of Section “A” of the New Orleans Recorder’s Court, thereby to restrain the former from interfering with their rights of usage of the described property for commercial purposes and to prevent the latter from proceeding further with certain cases pending against them in the court over which he presided.

On the return day of the rule for a preliminary injunction defendants filed exceptions to the jurisdiction of the court ratione materiae and of no right and no cause of action and an answer. Later, considerable evidence was adduced on a hearing of the rule, after which the district court sustained defendants’ exception to the jurisdiction and dismissed the suit. From the judgment plaintiffs requested and obtained the instant appeal.

The City of New Orleans has moved to dismiss the appeal on the ground that no steps were taken in the prosecution thereof during a period of more than five years after it was lodged in this court. The motion, which appellants have in no manner opposed either by way of pleading or oral argument or brief, is based on Section 3, Rule VIII of the Rules of this Court which were adopted October 4, 1951 and became effective January 1, 1952. That section states: “Any appeal, now or hereafter pending on the regular docket, in which five years have elapsed without any steps being taken in the prosecution thereof, shall be considered as abandoned and the clerk is directed to furnish the court with the name and number of any such appeal or appeals on or before the final session for the hearing of arguments in each court term. Any such appeal or appeals shall also be posted by the clerk on the calendar for summary dismissal by the court on the final day of the session. The provisions of this section are intended to be retroactive and to become effective upon the adoption of these rules but the right is reserved to the appellant or appellants in any case now pending, in which no action has been taken .for five years, to move for the transfer of the case to the preference docket within a period of six months following the publication of these rules in the advance sheets of the Southern Reporter.” {Italics ours.)

The quoted provisions were adopted for the benefit of the court in the proper administration of its affairs, their primary-purpose being to prevent the clogging ánd congesting of our calendar and docket with cases which might never come up for hearing or which might prove to be moot, if and when heard, as the result of settlement, death of parties or otherwise. 26 Tulane Law Review, 491, 493. , And, having for their principal objective the expeditious disposition of the court’s business, they have the effect of law. Code of Practice Article 878.3, LSA-R.S. 13:72, Interdiction of Wenger, 147 La. 422, 85 So. 62.

Moreover, such provisions, retroactive in effect according to the language thereof, are.clear and unambiguous. Thus they clearly state that when an appeal is pending on the regular docket for five years and no steps have been taken in the prosecution thereof during that period it' is considered as abandoned. That portion which directs the clerk to furnish the name and number of such an appeal to the court on or before the final session of each court term, as well as to post it for summary dismissal, in no manner affects the time within which the mentioned steps must be taken. The direction is merely for the convenience of the court in order that it can dismiss appeals of that character periodically when the appellees fail to so move. And the last provision (relating to a six months’ period within which a case might be transferred to the preference docket) purposed only to allow to appellants a delay for saving those appeals which were five or more years old at the time of the effective daté of the Rules and which would otherwise have been subject to immediate dismissal.

In the instant case the transcript of the appeal was lodged in this -court and placed on the ordinary docket on December 7, 1948. Thereafter, for more than five years nothing was done with respect to the áppeal, except that on December 10, 1948 and January 20 and 27; 1952, the record was obtained from the clerk’s office by various counsel — acts which, obviously, did not constitute steps in the appeal’s prosecution. As. a consequence, according to the Rule quoted above, the appeal was considered abandoned and became a nullity on the elapse of such five year period; and thereafter the only remaining action that could possibly be taken thereon was to strike it from the docket.

For the reasons assigned the appeal is dismissed.