author: ELLIS, Judge. TATE, Judge

text:
    Earl A. LEONARD, Plaintiff-Appellee, v. HOLMES & BARNES, Ltd. and Great American Indemnity Co., Defendants-Appellants.
    No. 4085.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.
    Writ of Certiorari Granted March 26, 1956.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    Benton & Moseley, Baton Rouge, Donald L. Peltier, Thibodaux, for appellee.
    Gravel & Downs, Alexandria, for inter-venor.
   ELLIS, Judge.

On the 12th of January 1951 at approximately 1:30 P.M. on a clear, dry day, a truck belonging to defendant Holmes & Barnes, Ltd. and insured by the Great American Indemnity Co. was being driven in the town of Port Allen on Louisiana Highway 168, and upon making a left hand turn approximately 85 feet west of Twelfth Street was struck on the right rear corner of its trailer by a 1936 Ford coach automobile owned and being driven by the plaintiff Earl A. Leonard. As a result of the collision plaintiff filed this suit against Holmes & Barnes Ltd. and its insurer on January 3, 1952.

On June 4, 1952, one year and six months after the accident sued upon, Coal Operators Casualty Co. filed a petition of intervention alleging that it was the compensation insurer of the State of Louisiana and the Louisiana Department of Wild Life and Fisheries by whom the plaintiff Leonard was employed on the date of the accident, and accordingly it had paid to the plaintiff up to June 1, 1952, $2,040 and further had paid plaintiff’s medical expenses totalling $1,656.18, and therefore prayed for judgment for $3,696.18 with legal interest thereon from date of judicial demand plus reasonable attorney fees.

To the petition of intervention defendants filed exceptions of no cause or right of action and in the alternative a plea of prescription of one year. While the minutes fail to reveal specifically what disposition was made of the exceptions and plea, there was judgment in favor of the intervenor, and hence they must be considered as having been overruled.

Plaintiff alleges in his petition that as he was about to pass defendant’s truck, the driver apparently made a left hand turn to enter the driveway into an establishment known as Mims Store, and that this maneuver was performed without any warning which was visible to plaintiff and was so quick and unexpected that there was nothing he could do to avoid a collision although he attempted to do so by applying his brakes and turning to his right.

Specifically plaintiff charges the following negligence to the driver of defendant’s truck:

“(a) The driver of the said truck failed to maintain an adequate and proper lookout, which amounted to negligence on his part and which was. a proximate cause of the accident.
“(b) The driver of said truck failed to give any signal or warning of his intention to turn left, or if any such signal was given, failed to give it in a. manner which could be seen by following motorists, which amounted to negligence on his part and which was a. proximate cause of the accident.
“(c) The driver of the said truck was negligent in turning the vehicle to-the left when he saw, or should have seen, that by such action a collision-was unavoidable, and without first ascertaining that such a movement could be made in safety, which amounted to-negligence on his part which was a. proximate cause of the accident.”

In the alternative plaintiff plead that the driver of the defendant’s truck had the last clear chance to avoid the accident.

The defendants answered denying any negligence on the part of the operator of the truck and alleging that plaintiff’s injuries and damages were due solely and entirely to his own carelessness and negligence for the following reasons:

“a. At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving in a wanton, heedless, careless, reckless, imprudent and unlawful manner taking into consideration the location, time of day, visibility and the fact that Leonard was driving on a heavily traveled street within the City Limits of Port Allen, Louisiana, without having due regard to the traffic properly using said street, or the life, limbs, or the property of others, all of which was and is an immediate and proximate cause of the accident.
“b. At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving, without keeping a proper lookout for other traffic on the street on which he was traveling, all of which was and is an immediate and proximate •cause of the accident.
“c. At the time and place of the accident, the plaintiff, Earl A. Leonard, •did not have the automobile which he was driving under proper control so as to enable him to avoid the collision with the trailer by stopping or turning the automobile which he was driving, which insufficient control of said automobile on the part of Leonard was and is an immediate and proximate cause •of the accident.
“d. At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving at a rate of speed greatly ■in excess of the speed limit allowed by .Section 45 (A) (B) of the Ordinance entitled ‘Regulating Traffic upon the Streets of the Town of Port Allen, Louisiana, Prescribing Penalties for the Violation of this Ordinance and Repealing all Ordinances in Conflict herewith,’ adopted by the Mayor and Board of Aldermen of the Town of Port Allen, Louisiana in 1950, all of which was and is an immediate and proximate cause of the accident.
“e. At the time and place of the accident, the plaintiff, Earl A. Leonard, was operating the automobile which he was driving while under the influence of intoxicating liquor in violation of the Laws of Louisiana and Section 52 of the Ordinance entitled ‘Regulating Traffic upon the Streets of the Town of Port Allen, Louisiana, Prescribing Penalties for the Violation of this Ordinance and Repealing all Ordinances in Conflict herewith,’ adopted by the Mayor and Board of Aider-men of the Town of Port Allen, Louisiana in 1950 all of which was and is an immediate and proximate cause of the accident.”

In the alternative defendants also plead contributory negligence for the five reasons heretofore quoted.

This case was tried on September 3, 1952 and decided on May 12, 1955. We mention this fact without intending any inference that our Learned Brother of the Lower Court was in anywise responsible for this delay but merely because it was argued both orally and in briefs as making a difference in the so-called manifest error rule. There was judgment in favor of the plaintiff and intervenor.

The District Court in its written reasons concluded:

“ * * * Obviously, therefore, the sole and proximate cause of said accident is the total failure of Tillman to assume his legal responsibility and follow the law which required him to exercise the highest degree of caution before and while attempting his said left turn across Highway 168 as aforesaid and placed upon him (Tillman) the responsibility for seeing that such a dangerous maneuver could be made in safety to approaching traffic as well as to all concerned. It is clear that Tillman in making said left turn was deeply and solely concerned with the difficulty of driving his large truck and trailer in and over the small drive-in entrance to said store especially since there existed at that time a hole on the side of said private road. And it is an indisputable fact that Tillman by his said heedless and careless driving of the truck and trailer left across said highway created a sudden emergency which was the proximate cause of the accident herein. Surely, if Tillman before making his said left turn, had looked for approaching traffic as the law requires, he would have seen what he should have seen and that is the approaching Leonard car close by in the south lane attempting to pass him, and Tillman could have and in accordance with the law of self-preservation would have remained where he was on the north side of said highway until after Leonard had passed him and there would have been no accident, and Leonard would not have been put by Tillman in the perilous position of attempting to extricate himself from the dangerous position resulting from said sudden emergency created by Tillman. And it is also apparent and undeniable that the Defendants herein have failed to carry the burden of proof as required by law in cases where contributory negligence is set up as a defense and that defendants have totally failed to establish affirmatively by a preponderance of evidence the contributory negligence of plaintiff Leonard alleged in this case.”

From an adverse judgment the defendants have appealed and the plaintiff has answered asking that the award be increased.

It might be well to first discuss this case from the standpoint of the negligence of the operator of the defendant’s truck as a proximate cause of the collision.

. It is shown that Highway 168 is a two lane paved highway leading west from Port Allen with 18 feet of concrete and 10 feet of shoulders on each side thereof and that the- motor vehicle was a truck and trailer and at the time was half loaded and weighed approximately nine thousand pounds. It was being driven west in order to make a delivery to a small grocery store located south of the highway known as Mims Grocery. Twelfth Street intersects the highway at approximately 85 feet from a gravel road leading to the south to Mims Store. The operator of the truck testified that he was traveling on the north or right hand lane of Highway 168, and a car was. approaching from the opposite direction, and that when he got to the Twelfth Street,, which was approximately 85 feet from the gravel road leading to Mims Grocery where he intended to make the left hand turn, he looked in his rear view mirror and he saw plaintiff’s automobile “about 400 feet behind me,” and after that he did riot look to his rear again but stated that he was watching the car approaching which passed him approximately 50 feet from the road leading into Mims Grocery. Prior to this time he had been driving approximately 20 miles per hour and stated that he slowed down to 15 miles per hour, put out his hand and turned to his left toward the Mims Grocery road. He stated that when his front wheels had gone off of the paved portion of the highway and entered the Mims. Grocery graveled road, and his tractor wheels were also off the pavement and his rear trailer wheels at the edge of the black center line of the highway he felt and heard the impact of plaintiff’s car colliding with the extreme right rear corner of his trailer body. This witness convicts himself of. negligence in failing to look to his rear just prior to attempting the left hand turn,, but whether such negligence is the sole proximate cause of the accident would depend upon a determination of the location of plaintiff’s car at the time he began the left hand turn.

The plaintiff’s testimony is not too satisfactory for he would have the Court believe that at the time the driver of the truck began his left hand turn he had been traveling at approximately 35 miles per hour and had stepped up to 45 miles per hour and pulled into the south traffic lane for the purpose of passing the truck and trailer; and the front end of his car was just past the rear of the trailer, that he immediately applied his brakes and pulled to his right and struck the right hand corner of the trailer and after that he remembered nothing. This version is impossible on its very face for had he already been in the south lane traveling at a speed of 45 miles per hour with the front of his car at least even with the rear of the trailer, it would have been utterly impossible with the trailer traveling not faster than 15 miles per hour for him to have put on the brakes, pulled to his right and come in contact with the right rear ’corner of the trailer.

The testimony of all the other witnesses in this case also shows that plaintiff’s version was not correct. Trooper Walker of the State Police investigated this accident and he testified that it happened in the Town of Port Allen on St. Highway 168 at the entrance to the little store. The speed limit at this point as shown by signs was 25 miles per hour. There were skid marks from the plaintiff’s car which the officer stepped off for a distance of 36 feet before it struck the right rear corner of the trailer, and the impact knocked the trailer part of the truck in an arc 18 feet in distance as shown by the tire marks of the trailer, and the plaintiff’s car thereafter went a distance of 114 feet and would have gone further but was stopped by an embankment of a ditch. The car was a total wreck, but particularly shown as having borne the brunt of the collision was the left front fender, hood and on back into the left part of the body of the car. It was estimated as totally demolished. It was the opinion of this witness that the plaintiff’s car could not have moved the heavy trailer in an 18 foot arc as it did at a speed of 45 miles per hour but possibly could have done so at 50 miles per hour. The trooper further located the approximate point of the collision on the highway from the debris and skid marks, and he placed the rear end of the trailer at approximately 2j/¿' to 3' north of the center line in the west bound lane. It was the opinion of Trooper Walker that the plaintiff’s “vehicle was traveling at a high rate of speed to have went in the manner in which it did.” At the moment of impact the trailer portion of the truck was diagonally in the east bound lane with the right rear corner protruding further into the traffic lane than the left side.

Every witness who testified in the case stated that the skid marks from the application of the brakes of plaintiff’s car, which Officer Bourg of Port Allen estimated at 30 feet in length and which Trooper Walker measured by stepping the distance off at 36 feet, were all in the west bound traffic lane. Plaintiff’s counsel argues that plaintiff, as he stated, was- in the east bound or south lane preparatory to passing the truck when he first observed the truck intending to make a left hand turn, and that during the reaction time he got back into the west bound traffic lane and therefore there were no skid marks in the east bound traffic lane. Counsel for the defendant counters, and we think correctly, with the proposition that the application of the brakes required the same reaction time as the turning of the car to the right. In other words;, from the testimony the plaintiff was not in the east bound traffic, lane preparatory to passing the truck just prior to applying his brakes. All the witnesses except one, the helper on the truck, testified that the skid marks were fairly straight, whereas this witness, although he positively testified that the skid marks were all in the west bound traffic lane, testified that they were on an angle to the right. This angle could be figured for the right rear corner of the trailer at the moment of impact was approximately 2^/2 to 3 feet in the west bound traffic lane and the skid marks were 36 feet to the rear, all in the west bound lane, therefore, if plaintiff was traveling close to the black center line at the time he applied the brakes, he had angled over 2^/2 to 3 feet of this distance in an attempt to avoid striking the trailer.

Counsel for defendant in brief presents the following argument as to proof of the location of plaintiff’s automobile at the time the defendant’s truck began its left turn, viz.:

“Although -the record does not contain a clear indication of the exact length of the Holmes & Barnes truck and trailer overall, let us assume that the length of the vehicle is approximately 40 feet. Since the rear of the trailer was at or near the center line ■of the highway at the time the accident occurred, and since the highway is approximately 18 feet wide, there was, at the time of the accident, approximately 10 feet of this vehicle still on the road. 'Thus, 30 feet of the vehicle had cleared the road. In other words, from the time it began its left turn, the front of the truck had traveled 30 feet south of the center line. During this time, of course, the truck made no appreciable movement toward the west, its direction of travel being toward the south. Assuming that the truck was traveling 10 miles per hour, or IS feet per second (which is probably an excessive estimate), the truck traversed the distance which it traveled in approximately two seconds. Let us further assume that Leonard was traveling only 45 miles per hour at the time of the accident (this estimate is almost ridiculously conservative) he would have been traveling 66 feet per second and in two seconds he would have traversed 132 feet. Therefore, taking the testimony in the most favorable manner to the plaintiff, it is obvious that Leonard was at least 132 feet east of the point of the accident when the Holmes & Barnes truck began its left turn.
“All of the stopping tables which we have been able to discover indicate that a driver traveling 25 miles per hour can bring his vehicle to a stop in a distance of 70 feet from the time that danger is first noticed. Therefore, since Leonard was at least 132 feet ■east of the place of the accident when the Holmes & Barnes truck turned left, if he had been traveling at a legal rate of speed of 25 miles per hour he could easily have stopped in 70 feet, a little ■over half the distance between himself .and the truck.
“If the truck took as long as 3 seconds (as it would at approximately 7 miles per hour) to reach the point of collision after it began its left turn, then Leonard must also have been 3 seconds away from the same spot and traveling a minimum of 66 feet per second at a rate of at least 45 miles per hour. Therefore, Leonard would have been at least 198 feet from the truck at the time the left turn was begun and the truck crossed the center line of the highway. The fact that stopping tables indicate a vehicle traveling 45 miles per hour should be able to stop in less than 198 feet after the driver recognizes danger merely indicates more clearly that Leonard was either traveling much faster than 45 miles per hour or was not keeping a proper lookout, or both. In any event, it clearly demonstrates that Mr. Leonard was guilty of negligence which was a proximate cause of the accident.
“Looking at the problem another way, when Tillman saw Leonard approximately 400 feet back, Tillman was justified in believing that Leonard was observing the speed limit provided by law and would continue to observe it. If Leonard had been driving at the •legal rate of 25 miles per hour it would have taken him more than 10 seconds to traverse the 400 feet at a rate of 37 feet per second. Tillman was legally justified in counting on this time interval since there was nothing about Leonard’s actions at that time to put Tillman on his guard. (Tr. 40) In the time interval which Tillman would have had if Leonard had been driving at the maximum legal rate of speed, Tillman could have driven the truck 150 feet at 10 miles per hour or 100 feet at 7 miles per hour and thus at either speed Tillman could have made the turn and cleared the highway by a side margin without the necessity of Leonard even slowing down from the maximum legal rate of speed as he passed the place where the accident occurred. The illegal, unreasonable and unforeseeable speed of the Leonard car was the factor which caused this unfortunate accident.”

While the above quoted argument would be difficult to reject, the length of the Holmes and Barnes truck and trailer is unproven in the record. Be this as it may, if we accept defendant’s argument that the plaintiff’s car at the time the operator of the truck began his left turn was 132 feet to its rear, then had the operator of the truck looked he would have seen this car and at that close distance would have known that its speed was more than the 25 mile legal limit and in fact would have realized or should have realized that it was coming at an excessive rate of speed and that he could not safely make the left turn. Therefore, the driver of the truck was guilty of negligence which was one of the proximate causes of the accident.

It remains for us to decide whether the excessive speed of the plaintiff was also a contributing or proximate cause of the accident. Should we accept the 132 feet distance argued for by counsel for defendant, plaintiff would be guilty of contributory negligence for traveling 45 miles per hour when if he had been traveling within the speed limit of 25 miles per hour he could, according to the tables, have brought his automobile to a complete stop within 70 feet and thus have avoided the accident. Further, had he been traveling 25 miles per hour he could have come to the rear of the truck and trailer in safety for he had approximately 6 feet of pavement and ten feet of level shoulder. However, it is not necessary that this court accept counsel’s argument as being the only reason shown by the record for convicting plaintiff of contributory negligence. There is other proof by which we can definitely approximate the distance plaintiff’s automobile was to the rear of the truck at the time he decided to take action to avoid the collision. In doing so we take the distance measured by Trooper Walker of 36 feet as being the length of skid marks made by plaintiff’s automobile, and using % of a second, the reaction time, at 45 miles per hour which plaintiff himself admits that he ' was going, and using the speed chart in Blashfield 9, Ch. 134, § 6237, Pg..413, we find that during the reaction time at that speed he would have traveled 49V¿ feet, which would have placed him approximately 85]/2 feet from the truck at the time he realized the danger. According to this chart, had he been traveling 25 miles per hour, or the legal limit, he could have come to a complete stop in less than 73 feet. While we realize that this would only leave a distance of 12i/¿ feet,.from the pictures of this demolished automobile and the fact that it moved this.heavy truck trailer a distance of 18 feet in an arc and had prior to that time traveled 36 feet with its brakes locked and after the impact continued on 114 feet more and was stopped by an embankment, we feel certain that plaintiff was going much faster than 45 miles per hour which,' of course, would have placed him quite a distance to the rear of the Holmes & Barnes truck at the time it began its left hand turn. This would possibly have relieved the driver of the truck of any negligence, for, assuming that plaintiff was traveling at such a speed, he would have been such a great distance that the driver of the truck could not have estimated his speed as he could at 132 feet or 85 feet or 90 feet, and would have been within his right in assuming that he had time to safely make the left hand turn.

There is also testimony by the plaintiff that when he noticed the truck slowing down he just kept coming until he actually realized the truck was going to make a left hand turn. In other words, he did nothing although there are residences and this store along the highway at this point. He stated that he had seen a 25 mile sign close into the center of Port Allen but thought that after he had crossed the railroad track there was no further restriction.

Therefore, under the proven testimony the plaintiff is convicted of contributory negligence, for if we accept his speed of 45 miles per hour (which we believe was proven to be much greater) and the positive length of the skid marks, and estimate it according to proven speed charts, we find that if he had been traveling at the, legal rate of speed there was sufficient distance between his ear and the truck at the time it began its left hand turn for him te have brought the car to a complete stop or at the legal speed sufficient room for him to have passed safely to the rear of the truck trailer. If the distance between the truck and plaintiff’s car had been so close at the time plaintiff realized that the left hand turn was going to be made, that at the legal speed he could not have avoided the accident by bringing his vehicle to a stop or safely passed to the rear thereof, then he would not be guilty of contributory negligence, but the defendant driver would be guilty of negligence which created an emergency and this would be the sole proximate cause of the accident and collision.

The Lower Court did not analyze the testimony from the standpoint of the contributory negligence of the plaintiff but merely stated there was no testimony to convict him of contributory negligence and based his decision as shown by his written reasons on a finding that the plaintiff had pulled into the south or east bound lane to pass the truck and the operator of the truck had suddenly made the left hand turn and, therefore, the sole proximate cause of the collision was the negligence of the operator of the truck in making this left hand turn without looking at a time when the plaintiff was attempting to pass.

It is impossible under the physical facts and the evidence in this record for us to ■ find that the accident occurred as the plaintiff testified, viz., that he had pulled into the south or east bound lane to pass the truck and it was then that the operator of the latter had suddenly made the left hand turn. As heretofore pointed out and from discussion of the testimony, he had not pulled into the south or east bound lane-to pass the truck, for at the great difference in the speed of the two vehicles he could never have again gotten to the rear of the truck and would most assuredly have struck it on the left hand side or left front. The entire judgment of our learned brother of the Lower Court being based entirely upon a finding that the plaintiff was in a position which the record reveals was impossible, ’ the judgment is therefore manifestly erroneous arid must be reversed.

In view of the opinion that we have reached in this matter as to the plaintiff’s claim it is unnecessary, of course, that we consider the plea of prescription filed as a bar to the intervention of the compensation insurer of the plaintiff.

For the above and foregoing reasons, it is ordered that the judgment of the District Court be annulled, voided and reversed, and that plaintiff’s suit be dismissed at his cost.

TATE, Judge

(dissenting).

I respectfully dissent. The majority opinion indicates logical reasons why the plaintiff may have been contributorily negligent. I do not agree, however, that the physical evidence dictates our finding plaintiff contributorily negligent, in the face of sworn testimony to the contrary, found credible by the District Court who saw and heard the witnesses.

Essentially, the District Court found that the accident occurred as testified by plaintiff: namely, tjaat he was following the defendant’s long truck-trailer combination at a place near the westernmost city limits of Port Allen at a speed of 35 mph; that the truck slowed somewhat, and plaintiff speeded to 45 mph to pass it; that when plaintiff was from 8-35 feet in the rear thereof, the truck driver suddenly without warning turned left into a small road driveway into Mim’s Grocery Store, obstructing both the left (south) lane, as well as the truck body or trailer partially obstrucing the right (north) lane; that plaintiff by instantaneous desperate reflex action pulled his car to the right or north, but was unable to avoid having the truck’s right front corner post strike the left hood or front window post, raking plaintiff’s- car, which went out of control and landed in a ditch approximately 100 feet distant from the impact. Thus, whether plaintiff was proceeding at a rate of 25 mph, or 45 mph, he could not. have avoided the .accident, as speed was not a proximate cause thereof./

Of course, the negligence of defendant’s truck driver cannot seriously be questioned;' He stated he turned left into the driveway without making any signal and without a lookout to his rear, his attention being directed to his front upon an oncoming car, immediately after passing which he turned into the driveway, having slowed from a speed of 20 mph to IS mph. (On a deposition prior to trial, he said he had slowed lo about 10 mph.)

From certain uncontradicted physical facts the majority drew the conclusion that this sworn testimony, accepted by the trier •of fact, was untruthful. These physical facts are:

1. That plaintiff’s vehicle made skid-marks of 30-36 feet in length, at a slant .across the northern (plaintiff’s) portion of the highway before the point of impact, after which the skidmarks ceased;

2. That the rear wheels of the truck made skidmarks for approximately 18 feet in length in an arc following the impact; (probably, in my opinion, indicating application of the truck brakes after the impact, as testified by the truck driver in a ■discovery deposition);

3. That plaintiff’s car ended up against .a hill (burrow pit) at from 98 to 114 feet from the point of impact, and according to one witness was smashed against the hill;

4. Slight if any damage was caused the rear steel corner post of .the trailer of the truck (in my opinion, indicating that the -truck received a very slight blow);

5. Plaintiff’s 1936 Ford was demolished -when found after it come to rest crashed into the hill, and it had apparently been raked .on the lefthand side by the truck’s corner post.

6.Plaintiff himself was very badly mangled and was caught in the car as it lay after the accident, and it was necessary to disconnect the battery wires because the car was commencing to smoke.

Now the majority has indulged in hypotheses from these physical facts to find that plaintiff was proceeding at terrific speed and was a sufficient distance to the rear of the truck when it made its turn to have avoided the accident if plaintiff had been proceeding at the legal instead of an excessive speed. In my opinion, it is a serious fallacy to determine a factual matter on an appellate record by hypotheses based on what must be arbitrary assumption or exclusion of many variable factors.

For instance, the stopping distance tables use an “average” reaction time of J^th second. But in an individual instance, this may be appreciably less or appreciably more, in the vital terms of split seconds which, translated into feet distant before the accident, magnify or minimize negligence. As shown by comparison of various stopping-distance charts, there are various theoretical braking distances of vehicles after brakes are applied, depending on the braking efficiency of the vehicle (which varies from vehicle to- vehicle, and on the same vehicle at different periods of time) and on the condition and type of stopping surface, as well as varying assumptions as to reaction time.

It is not what may have transpired as indicated by theoretical law-library charts, it is what actually did transpire as testified to by witnesses found truthful, that determines whether or not given conduct was negligent.

Taking the same physical facts which the majority felt proved impossible the sworn testimony of a human witness, found truthful by a trier of fact, I believe on the contrary they corroborate his version of the accident.

As noted above, the truck skidmarks probably resulted not from any impact by plaintiff’s car, but from the application of the truck’s own brakes; the fact that the brakes were applied when the truck was half-turned, and thus there was both momentum toward the side-road (pulled by the tractor, which had already turned) and also momentum straight ahead (the trailer’s course had not yet completely changed, and this heavy weight upon sudden application of the brakes tended to continue westward or forward, as applied against the left or southern motion of the already-turned forward part of the long truck) caused the arcing nature of the skidmarks, which were eighteen feet in length, showing the truck went 18 feet before stopping after continuous application of brakes, and probably indicating the truck suddenly turned while still going in excess of IS mph, as testified by the truck driver. This sudden turn blocked the entire highway.

The fact that plaintiff’s skidmarks were 30-36 feet in length before the impact, but stopped at the point of impact, indicated that the brakes were released at the time of impact (when the plaintiff was knocked unconscious), causing the car to proceed unchecked into a hill or burrow-pit, where it demolished itself. If hypothetical speculation is in order, it is just as reasonable to suppose that perhaps the unconscious body of plaintiff pushed down the accelerator after the impact, as it is to suppose that plaintiff must necessarily have been a great distance behind the truck when it made its sudden turn. Certainly, the damage to this ancient car and the distance it went after the truck corner post grazed or raked its left hood and left (driver’s side) window post, are consistent with a speed of 45 mph; see Lawyer’s Motor Vehicle Chart, where at 45 mph braking distance after brakes are applied and continuously applied until stop is shown as 161.3, compared with here, brakes applied for 30-36 feet, then released, and then car came to rest 90-114’ further.

Due to the slight damage to defendant’s truck post, it is more reasonable in my opinion to assume only slight impact between the truck and the car, although the steel corner post raked through the frail 1936 Ford body (described by a witness as of relative “egg shell” consistency). Thus, the major damage sustained by the car was caused when it crashed into the hill, unchecked by brakes and out of control, the driver unconscious.

Further, considering that the tractor or cab of this long truck and trailer (no measurements thereof are in the record), turned and proceeded down the side-road, while the rear end of the trailer still proceeded westward, it is far from improbable that plaintiff’s brakesmark commencing at 30-36 feet from the point of impact, actually commenced just a few feet to the rear (east) of where the rear of the trailer was situated at the time the truck commenced its turn; between the driver’s reaction time and braking distance time, of course, the rear of the trailer continued westward before turning, drawn forward by the front of the truck which had turned southward into the little lane to the store.

I have digressed at this length to indicate the really serious fallacy involved in our substituting for sworn testimony, hypotheses, existing only in our own respective minds and founded on arbitrary assumptions of reaction times, braking efficiencies, braking surfaces, speeds, and distances which of necessity exclude the infinite variations which may have in fact existed.

It is therefore my belief that the finding" of the District Court was not manifestly-erroneous that the defendants’ truck pulled suddenly across plaintiff’s path, causing the accident, and that the defendants did not bear their burden of proving the affirmative defense of contributory negligence by any evidence to the effect that plaintiff was a sufficient distance to the rear of the truck to have avoided the accident if proceeding at a reasonable speed.

I might add that, as a matter of law, I do not believe a speed in excess of the legal speed limit of Port Allen to be per se negligence at the place and time of the accident. Our speed statutes provide that one who operates a vehicle in excess of the speed limits “shall be prima facie at fault”, LSA-R.S. 32:227; see also 5 Am.Jur. 647, Verbo “Automobiles”, Section 262 “Driving in Excess of Speed Limits”. But although there is a presumption that speed excessive of statutory limit is negligent, under the facts and circumstances of each case such speed may be affirmatively shown not to constitute negligence.

The facts indicate that this accident happened on the highway very near the westernmost limits of the town of Port Allen. Following the store into which defendant’s truck was turning, was open country. Thus, while technically within the town limits and subject to the speed ordinance, actually speed in excess thereof may not constitute negligence in the face of the actual circumstances in this sparsely settled area (there were three or four residences adjacent to the store). It may be no more negligent under the facts and circumstances of this case for plaintiff to have increased his speed to 45 mph to pass this slower-moving truck, than to have done so at any other place on the open highway. See Ball v. Home Oil Co., La.App. 1 Cir., 4 So.2d 579; Grasser v. Cunningham, La.App. 1 Cir., 200 So. 658; Toney v. Burris, La.App. 1 Cir., 45 So.2d 438; McDonald v. Zurich General Acc. & Liability Ins. Co., La.App., 25 So.2d 923; Murphy v. Star Checker Cab, Inc., La.App., 150 So. 79. See also Casser v. Mansfield Lumber Co., 215 La. 533, 41 So.2d 209, where under almost identical facts in open country, the forward truck driver was held to have had the last clear chance to avoid the accident since he should have noted car approaching from his rear before suddenly turning into driveway.

For the above and foregoing reasons, I respectfully dissent from the majority opinion herein.

      . For instance, see table Blashfield’s Cyclopedia of Automobile Law, Section G237, Volume 90, page 412 (Perm. Edition) : where at 10 mph, a driver is supposed to take a total of 15.5! to stop (including actual stopping distance after brakes applied if brakes “in excellent condition” of 4.5', plus reaction time of “average driver” of 118); at 20 mph, of ■40' (reaction time, 22'; distance after brakes applied, 18'); at SO mph, of 73' to stop (33' reaction time, and 40' after ^brakes applied), etc. But compare ta'ble, “Lawyer’s Motor Vehicle Speed ■■‘Chart”, published by International Enterprises, Boston, Mass., where for same speeds total stopping distances are set forth as:- at 10 mph 20.8' (reaction time, 14.7'; braking distance, 6.1'); at 20 mph, 59.3' (reaction time, 29.3'; distance after brakes applied, 30'); at 30 mpbi, of 120.2' total braking distance to stop (44' reaction distance, ■ 76.2' after brakes applied). ,’
      Thus at 30 mph, there is a difference in total braking distance of about 50 feet! At 60 mph, Blashfield’s shows the total braking distance as' 226 feet; the Lawyer’s-Speed Chart as 364.4 feet;- or more than 1 y% times as great a distance, 138.4 feet more distant!


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    228 La. 724
    STATE of Louisiana v. Robert E. LEA.
    No. 42505.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      John P. Dowling, Louis P. Trent, New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Edward A. Haggerty, Jr., James C. Garrison, Asst. Dist. Attys., New Orleans, for appellee.
   PONDER, Justice.

The defendant, Robert Lea, was indicted, tried and convicted for the crime of murder and sentenced to be electrocuted. He has appealed from the conviction and sentence.

During the course of the trial, counsel for the defendant reserved eighteen bills of exception to the rulings of the trial court.

Bills of Exception Nos. 1, 2, and 4 were reserved to the refusal of the trial judge to quash the indictment on the ground that members of the Negro race were systematically excluded from the grand jury which indicted him, and the refusal of the trial judge to permit him to produce witnesses to establish this fact. The trial judge in his per curiam states that grand juries in Orleans Parish from time immemorial have been composed of only white persons. Counsel for the defendant contends that the accused has been denied due process and equal protection in violation of the State and Federal Constitutions. The defendant is a member of the white race and the man whom he is convicted of murdering is also a member of the white race. To support his contention, counsel for the defendant relies on a state statute and a federal statute to the effect that no person possessing the qualifications prescribed by law shall be disqualified for jury service, either grand jury or petit, in any court of the United States or of any state on account of race, color or previous condition of servitude. 18 ,U-S.C.A. § 243, LSA-R.S. 15:172. He also relies on the holdings in the cases of: Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Ballard v. U. S., 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181; Nanfito v. U. S., 8 Cir., 20 F.2d 376; U. S. v. Foster, D.C., 80 F.Supp. 479; U. S. v. Dennis, 2 Cir., 183 F.2d 201.

We have examined all of the cases cited by counsel and do not find them applicable for the reason that the question at issue herein was not at issue in those cases. As we take it, the defendant is contending that he has been discriminated against by the exclusion of a race or class of persons to which he does not belong. In our review of the decisions of this Court and the Supreme Court of the United States, we do not find any case wherein the verdict of a jury was reversed on the ground of systematic exclusion of a class or race except where the accused was a member of that class. We feel that this conclusion is supported by the following authorities: Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; State v. Krieger, 212 La. 527, 33 So.2d 58; State v. Poe, 214 La. 606, 38 So.2d 359; American Jurisprudence, Vol. 12, page 138, para. 474; Vol. 11, page 759, para. 114.

Bill of Exception No. 3 was taken to the refusal of the trial judge to recuse himself. The motion to recuse is based on the ground that the trial judge was the father of Malcolm O’Hara, assistant District Attorney, who allegedly appeared before the grand jury and engaged in the investigation and preparation of the case. It is not contended that Malcolm O’Hara participated in the trial of the case.

LSA-Revised Statutes 15:303 provides for the mandatory recusation of the judge when he is related within the second degree to an attorney on either side of the cause. This question was heretofore presented to this Court under a similar statute and it was held that the statute had no application where an attorney was a public officer representing the state by virtue of his office. This Court held that the judge is not required or permitted to recuse himself in a case wherein his father, brother, or son appears before him in his capacity as a public officer representing the state or a public body. State v. Standard Oil Co., 164 La. 334, 113 So. 867; see also In re Borie, 166 La. 855, 118 So. 45 and In re Mereaux, 202 La. 736, 12 So.2d 798.

Bill of Exception No. 5 was taken to the ruling of the trial judge refusing the defendant’s prayer for oyer of an oral confession made by the defendant. In the case of State v. Dorsey, 207 La. 928, 22 So.2d 273, this Court set the precedent compelling the state to turn over to defense counsel in advance of trial copies of written confessions it might have in its possession. Many attempts have been made by attorneys to extend this legal principle which this Court has refused to do. State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Martinez, 220 La. 899, 57 So.2d 888.

Counsel for defendant states in his brie'f that he finds no merit in Bills No. 6, 10, 14 and 17. However, he says that he does, not abandon these bills but is confident the Court will give him the benefit of any merit it may find in them.

Bill of Exception No. 6 was taken to the overruling of defendant’s motion to examine singly and separately each juror on their voir dire. Three jurors were called and sworn at one time and counsel was permitted to examine each juror as to his qualifications. Under such circumstances, he could suffer no injury by this method of procedure.

Bill of Exception No. 10 was taken to the overruling of the defendant’s objection to the introduction of two photographs. The photographs were offered to identify the deceased and to show the location of the wound on his body. We have examined the photographs and do not find them to be gruesome. It appears from the per curiam of the trial judge that the identity of the deceased was at issue in the trial of the case and that the location of the wound was relevant. We find no merit in this bill.

Bill of Exception No. 14 was taken to the overruling of counsel’s objection to a question propounded to a witness by the state, viz.: “Did you hear this person make any expression or statement.” It appears that this witness was relating what transpired at the time the deceased was killed when this question was asked, referring to the deceased. The evidence was clearly admissible and we find no merit in this bill.

Bill of Exception No. 17 was taken to the overruling of defendant’s objection to a statement made by the court at a hearing of a lunacy commission prior to the trial. Defendant contends that the statement was prejudicial to the rights of the accused and was an improper comment on the evidence. The statement was not made during the trial of the case but at a hearing of the lunacy commission prior to the trial of the case. When the law prohibits the trial judge from commenting on the evidence, it means during the trial of the case and not any comment made at any prior preliminary proceeding.

Bill of Exception No. 7 was taken to the court’s overruling defendant’s motion to exclude the mother and close relatives of the deceased from the courtroom, based on the ground that they might make a remark or an emotional demonstration which might prejudice the accused. The trial judge, out of undue precaution, summoned the relatives of the deceased to his chambers, out of the presence of the jury, and they assured the court that they understood their obligation to remain quiet throughout the proceedings and, according to the per curiam, they did remain quiet. Such being the case, there is no merit to this bill.

Bill of Exception No. 8 was taken to the refusal of the trial judge to sequester the witnesses at the commencement of the examination of the prospective jurors on their voir dire. The witnesses were sequestered before the prosecution began its opening statement and remained so throughout the trial. Under the provisions of LSA-R.S. 15:371, the judge may at any stage of the trial order the sequestration of the witnesses. The sequestration of witnesses is within the sound discretion of the court and this Court has on numerous occasions held that a verdict of a jury will not be set aside in the absence of any showing of an abuse of this discretion.

Bills of Exception Nos. 9, 11, and 12 were taken to the overruling of defendant’s objection to the admission of three confessions, two oral and one written. Counsel for the' defendant contends that the confessions were not freely and voluntarily made. It appears from the per curiam of the trial judge that the state laid the proper foundation for all three of the confessions by positive proof that they were freely and voluntarily made. In fact, the defendant himself admits in his testimony that he was not induced to make the statements by any promises nor was he forced to make the statements because of any threats, intimidation, or harm done him. There is testimony in the record to the effect that, after the defendant had made the first oral confession and prior to his making the second oral confession, a civilian oil station operator, who held an honorary special agent’s commission for the Department of Wildlife and Fisheries, struck the defendant while he was in the custody of two police "officers. The police officers immediately intervened and informed this civilian to cease his belligerent attitude towards the defendant, which, in effect, was informing him that they would not tolerate any mistreatment of the defendant. A reading of the testimony of the defendant demonstrates that he was not influenced in making the second confession by the act of this civilian. See State v. Joseph, 217 La. 175, 46 So.2d 118.

Bill of Exception No. 13 is levelled at a remark made by a prospective juror while being examined by counsel for the defendant. It appears that counsel for the defendant informed the prospective juror that the defendant was pleading not guilty and not guilty by reason of insanity. Thereupon the prospective juror asked counsel, “Is he pleading insanity,” and counsel replied, “Yes,” then the juror stated, “He doesn’t look insane to me.” Counsel for the defendant moved for a mistrial based on this quoted comment. The court refused to order a mistrial and instructed the jurors to disregard this statement if they heard it. The prospective juror was excused by the court for cause. A new trial should not be granted because some witness or prospective juror happens to make some statement that is completely unresponsive to any question propounded to him and for which neither counsel nor the court are in the slightest measure responsible. State v. Simpson, 216 La. 212, 43 So.2d 585 and authorities cited therein.

Bills of Exception Nos. IS, 16, and 18 were reserved to the trial judge's rulings denying a motion for a new trial and a motion in arrest of judgment. Counsel for the defendant states in his brief that all points raised by these bills of exception were argued at length in the foregoing bills of exception. Having disposed of the foregoing bills of exception, we conclude there is no merit in these bills.

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


author: MOISE, Justice.

text:
    228 La. 736
    John H. LANIER et al. v. HARTFORD ACCIDENT and INDEMNITY COMPANY et al.
    Nos. 42423, 42432.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Ponder & Ponder, L. B. Ponder, Jr., Amite, for petitioners.
    Jones, Walker, Waechter, Dreux & Poitevent, New Orleans, for intervenor.
    Reid & Reid, Hammond, Frank T.
    Doyle, Robert G. Hughes, New Orleans, for defendants-respondents.
   MOISE, Justice.

Plaintiffs, John H. Lanier and Elizabeth Williams Lanier, sued

1. Hillary Simmons;
2. A. R. Blossman Company, Inc.; and
3. Hartford Accident & Indemnity Company, the insurer of A, R. Blossman Company, Inc.;

for damages resulting from the death of their minor son, Preston Luke Lanier, in an accident on April 18, 1947.

Liberty Mutual Insurance Company, workman’s compensation insurer of decedent’s employer, Clemons Brothers Lumber Company, intervened for the recovery of compensation benefits paid, funeral expenses, court costs, etc.

Trial on the merits resulted in a judgment in favor of the plaintiffs and against the defendants, in solido, for the sum of $10,000. The judgment further provided that the intervenor be paid the sum of $2,805, with preference and priority, out of the sum of $10,000 awarded to petitioners — petitioners, John H. Lanier and Elizabeth Williams Lanier, to receive the residue of $10,000 after the payment of $2,805 to the intervenor, Liberty Mutual Insurance Company.

From that judgment A. R. Blossman Company, Inc. and Hartford Accident & Indemnity Company perfected an appeal to the Court of Appeal for the First Circuit. Hillary Simmons evidently acquiesced in the judgment by not taking an appeal, and he is, therefore, not before this Court.

By a divided court, the Honorable Court of Appeal for the First Circuit dismissed plaintiffs’ suit on grounds of contributory negligence. Judge Tate dissented.

Writs were taken to this Court and granted, and the matter is now before us for review.

The facts are that at the time of the accident the decedent, Preston Luke Lanier, sevente'en years of age, was employed by Clemons Bros. Lumber Company; that around noontime on April 18, 1947, said Lanier was driving a heavily loaded log truck trailer eastward toward Tangipahoa on the gravelled Spring Creek Road, which is approximately 18 to 20 feet wide. He was following a log truck driven by a fellow employee, John R. Jones, who was having motor trouble.

The evidence shows that the accident occurred on the incline of a hill, some 900 feet from its crest, in front of the home of one Doyle Bridges; that Bridges’ Ford truck was parked in front of his home in a westerly direction on the northern side of the highway; that just prior to the collision, Hillary Simmons’ truck, driven by Dermont Lambert, and a truck of the A. R. Blossman Co., Inc., driven by A. R. Tweedy, stopped behind Bridges’ car to permit the log truck driven by Jones to pass. There was sufficient room for Jones to pass, and we hold that what one man has done another can do if the circumstances are the same.

The driver of the Simmons’ truck then pulled out into the highway to pass Bridges’ parked car. On seeing Lanier’s truck coming over the crest of the hill he tried to stop or park his truck in his own lane of traffic, but he was not successful. His truck rolled backward into the Bloss-man truck — for what reason the evidence does not show.

Jones swore that after he passed the three parked vehicles, he saw (from his mirror) the Blossman truck cross over the center line of the gravel road.

Descending the hill in his lane of traffic, Lanier was confronted with the Simmons and Blossman trucks obstructing his lane of traffic, which created a sudden emergency. He struck the Simmons truck, went over to the Blossman truck, striking it with considerable force, and then continued on into the ditch on the northern side of the road. The logs on the truck shifted and Lanier was instantly killed.

When confronted with this sudden emergency, Lanier could not go to his right, because he was only 18 to 20 inches from a ditch. He is not here to testify; we can only judge from the circumstances. We look at the emergency which surrounded the decedent’s actions, and then we sound his heart by the plummets which we apply to our own. The physical facts are that at the point of impact, splintered glass was in decedent’s lane of traffic.

State Trooper Anderson made the following report after the investigation of the accident:

“Veh No. 1 Traveling E on Spring Creek road meeting No. 2 followed by No. 3 traveling W. A car was parked in No. 2’s Lane and attempted to pass parked car but saw approaching trk. and reversed gear and came to a stop in rear of parked car. Nos. 2 and 3 was on or near center of Roadway when veh. attempted to pass parked car. No. 1 applied brakes and lost control of Veh. No. 1 hitting Nos. 2 and 3 causing No. 3 to turn half Round & into ditch. No. 1 trailed approx. 18 ft and ran into ditch and logs shifted on load causing death óf subj ect.”

Plaintiffs allege that the death of their son was caused and occasioned by the following acts of defendants:

1. In attempting to pass a parked vehicle without ascertaining whether or not safe passage could be negotiated.
2. In failing to accord converging .traffic its proper side of the highway.
3. In pulling out in front of converging traffic.
4. In not having their vehicles un■der control sufficiently to enable them to stop behind parked traffic to enable ■converging traffic to safely pass.
5. In failing to sound horn or other warning in passing traffic.
6. That the first and second named .defendants were negligent in attempting to pass an automobile on the upgrade of a hill without ascertaining that said passage could be safely made.

To the facts we must now apply the law.

LSA — Revised Statutes 32:233, and especially Section “C” thereof, provides as follows:

“The driver of a vehicle shall not drive to the left side of the center line of the highway in overtaking and passing another vehicle traveling in the same direction, unless such left side is •clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety. Whenever an accident occurs under such circumstances, the responsibility therefor shall rest prima facie upon the driver of the vehicle doing the overtaking or passing.”

The case of Teche Lines, Inc., v. Gorum, 202 La. 993, 13 So.2d 291, 293, under facts strikingly similar to the case at bar, holds:

“Under Rule 7(c) of Section 3 of Act No. 21 of 1932, the prima facie responsibility for accidents occurring when the driver of a vehicle crosses the center line of the* highway in overtaking and passing another vehicle where the left side is not ‘clearly visible and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in perfect safety’ is placed upon the driver of such overtaking or passing vehicle. Furthermore, under the universal rule of law, ‘An automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice and one that would have been required in the exercise of ordinary care, but for the emergency.’ 5 Am.Jur. 600, Sec. 171. * * *”

In his reasons for judgment, the district judge made these pointed observations :

“This Court is familiar with the location of the accident and witnesses and believes that the plaintiffs have established their case by a preponderance of evidence and believes that b.oth the driver of the Simmons truck and the Blossman truck violated both Rules 6 and 7 of the Highway Regulatory Act 286 of 1938 as amended. Likewise the Court does not feel that the defendants have rebutted the prima facie evidence of responsibility imposed upon drivers passing vehicles on hills.
“The Court is further of the opinion that here lies the cause of the swaying of the log truck and the apparent losing of control of same after striking the Simmons truck because the defendants themselves created an emergency by attempting to pass on an incline a parked automobile and then attempting to pull back out of the path of the approaching log truck.”

In its judgment dismissing plaintiffs’ suit, the divided Court of Appeal held [79 So.2d 186]:

“There was no emergency created by Lambert or Tweedy. As to why Lanier’s truck went out of control can not be determined from the evidence in this case but if the Simmons and Blossman trucks were on their side of the highway, which the plaintiff has failed to show was not a fact, then the collision was not due to any act of negligence on the part of either, but apparently due to the negligence of the deceased, Preston Lanier.” (Italics ours.)

Plaintiffs contend that the decree of the majority of the Court of Appeal is contrary to the decision of the Second Circuit Court of Appeal in the case of Hardy v. National Mutual Casualty Co., 9 So.2d 346, the syllabus of which states:

“Where defendant’s automobile, in overtaking and passing a slow-moving truck, collided with plaintiffs’ on-coming automobile at a point about 8' feet ahead of truck and before regaining right side of highway, a presumption of responsibility of defendant was created by the statute prohibiting passing another vehicle where it cannot be done in safety. * * *
“Where defendant, in overtaking and passing a slow-moving truck, collided with plaintiffs’ on-coming automobile, defendant failed to meet burden of overcoming presumption of responsibility on part of overtaking vehicle, when collision occurred about 8 feet ahead of truck before defendant regained right side of highway and it was not shown that plaintiffs’ automobile was traveling at an excessive-rate of speed.”

Judge Tate, in his able dissent, made the following pronouncement:

“ * * * the decision of the District Court is supported by the overwhelming preponderance, of the sworn evidence; and in arriving at a contrary result, we are substituting merely our own opinions for this sworn testimony. We are further committing error of law in allowing a routine and perhaps unconsidered accident report greater weight than the sworn testimony at the trial of the police officers who prepared this same report.
“In- an opinion ably summarizing the evidence, the District Court found that the defendants’ trucks going uphill had pulled out across the center of the highway to pass a car parked in their lane, and into the path of decedent’s log truck which had come over the crest of the hill. The Simmons’ truck attempted to back up, and the Blossman’s truck motor had stalled. The District Court concluded that the accident was caused by the defendant trucks’ negligence in attempting to pass.the parked vehicle on the upgrade .of a hill and in the face of opposing traffic, LSA-R.S. 32:233, and that if decedent lost control of his truck immediately prior to the accident, it was due to the emergency created by the negligence of defendants’ trucks in being passing or stalled immediately in his path on his portion of this narrow gravelled road.”

Further in Judge Tate’s dissent, we find this:

“I do not believe it is within the province of this Court to substitute its opinion that tracks and physical evidence such as described by these five apparently disinterested witnesses could not have been made or discerned on the gravel road in question, for their sworn testimony that such tracks were there and discernible. This is to substitute mere speculation on our part for sworn testimony of witnesses— sworn testimony which is not seriously disputed by contrary evidence or even by searching cross-examination. To hold that such tracks could not possibly have been made by the desperate and perhaps terrorized application of brakes on this heavy log truck, does not appear to me to be so infallible an assumption as for us on the strength thereof to characterize as coldblooded perjury the testimony of Trooper Anderson, 'Deputy Sheriff Gill, and Messrs. Bridges, McKnight, and Graves.
“This sworn testimony is not conjectural and positively places by sworn testimony the point of impact as over in decedent’s portion of highway. [Italics ours.]
“The majority’s decision of decedent’s contributory negligence is also based upon decedent’s proceeding at too great a rate of speed under the circumstances and not having his truck under control. This latter is based upon decedent’s truck swaying on the road at the time of the accident according to the testimony of Lambert, driver of defendant Simmons’ truck. Lambert admits having pulled out to pass the parked truck after the first oncoming (the Jones) truck had passed, and was at the center of the road and judged the Blossman truck was a little further out past his own truck starting around him in the path of oncoming vehicles (although under cross-examination by his codefend-ant’s counsel, he stated that this was based not on direct observation but the greater impact received by the Bloss-man truck).” (Physical facts.)

The first and only thing to rely on is the truth, manifesting itself by the demonstrative physical facts and those that are proven by the senses. These are the cornerstones; these are the columns that nothing can move; these are the true and only foundation for belief. Beyond the truth that has been demonstrated is the horizon of the probable.

To our mind this record presents that the gross negligence of the drivers of the Simmons and Blossman trucks in blocking decedent’s lane of traffic (where simple observation could have disclosed the danger of such action), without taking the precaution of any kind of signal to warn approaching traffic of the danger, was unquestionably the proximate cause of the accident.

For the reasons assigned, the writs are made peremptory; the judgment of the Court of Appeal for the First Circuit is reversed and set aside; and the judgment of the district court is reinstated — all costs to be paid by A. R. Blossman Company, Inc. and Hartford Accident & Indemnity Company.

PONDER, J., recused.


author: FOURNET, Chief Justice.

text:
    228 La. 748
    Mrs. Noemie Judice DUGAS et al. v. Edgar H. POWELL et al., John C. Hollingsworth, Intervenor and Third Opponent.
    No. 40636.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      A. H. Reed, Floyd J. Reed, Corwin B. Reed, New Orleans, Jack Voyles, Port Arthur, Tex., Dale, Richardson & Dale, E. Leland Richardson, Vidalia, for plaintiffs-appellants.
    Frank S. Craig, Jr., Baton Rouge, McDonald & Buchler, Metairie, for defendants.
    Samuel J. Tennant, Jr., New Orleans, for intervenor and appellee.
    Hilary J. Gaudin, Baldwin, Haspel & Molony, Richard C. Baldwin, New Orleans, amici curiae.
   FOURNET, Chief Justice.

This litigation commenced as a dispute between two large groups of people, descendants of branches of the Boutté family, who lay adverse claim to a strip of land comprising some 400 acres, situated on the island of Barataria (sometimes referred to as the island of Boutté), Jefferson Parish, partly in T. 16 S., R. 23 E., and partly in T. 16 S., R. 22 E., which might be described as overlooked or lost land. The plaintiffs, descendants of brothers and sisters of Francois Zenon Boutté, the last record owner of the property (whose children predeceased him), claim title as his heirs, while the defendants have as a basis for their title an ex parte judgment of the 24th Judicial District Court, Parish of Jefferson, of June 26, 1936, recognizing 162 of their number to be “sole surviving heirs at law of Francois Thisapherne Boutté and of Francois Zenon Boutté, deceased,” and placing them in possession, in stated proportions, of an undivided half interest in the property; and decreeing the other half interest to belong to Edgar H. Powell as their assignee. The petition herein was filed on July 26, 1938, by 1,079 individuals against the 162 named persons in the above judgment as well as against Powell, a title abstractor, Alexis Brian and A. Morgan Brian, attorneys, and Edwin P. Brady- — the Brians and Brady having acquired their interest through Powell. The matter is here on appeal for the third time.

It appears from the case as originally before us (March of 1941) that the 162 defendants were sought to be brought into court by service of process on Brian and Brian as their alleged agents and attorneys-in-fact; but upon denial by the Brians that they represented the said individuals and acquiescence by counsel for the plaintiffs in the pleadings filed by the Brians, no further attempt was made to cite that group and the suit against those defendants was dismissed. There remained as defendants in the case when first presented here on appeal by the plaintiffs, only Powell, the Bri-ans, and Brady; and after due consideration we reversed the lower court’s judgment maintaining various exceptions, particularly the exception of no cause of action which had been predicated on the contention that plaintiffs could not advance their claim to ownership of the property as heirs of Francois Zenon Boutté without first bringing a direct action to set aside the ex parte judgment of June 26, 1936, in the Succession of Francois Zenon Boutté; and we remanded the case for trial on the merits. See Dugas v. Powell, 197 La. 409, 1 So.2d 677.

When the matter was before us for the second time (January of 1945), again presenting an appeal by the plaintiffs from a judgment of the trial court maintaining a plea in bar filed by the defendants (Powell, Brady, Alexis Brian and the heirs of the late A. Morgan Brian), based “solely on the ground that the defendants herein ‘believed’ at the time they acquired their interests in the property that the 162 persons named in the ex parte judgment were the heirs of the deceased,” we reversed and again remanded the case for trial on the merits. See Dugas v. Powell, 207 La. 316, 21 So.2d 366.

On June 15, 1945, trial of the present litigation on the merits was begun, the testimony being devoted largely to the tracing of antecedents of the witnesses; and because of the delays incident to obtaining depositions and procuring marriage and death records, many continuances were required and these extended over a period of almost two years. Meanwhile the Brians, on February 25, 1947, sought and were granted permission by the court to withdraw as defendants upon representations which amounted to a disclaimer of interest in the land in dispute.

When the case was again called for trial on April 14, 1947, John C. Hollingsworth, one of the attorneys representing plaintiffs who had been active in the case since his association therein on August 16, 1938, suddenly withdrew as counsel, and dictated in .open court a petition of intervention and third opposition against all other parties to the litigation, both plaintiffs and defendants, basing his claim on a judgment of the District Court in the Succession of Jean Baptiste Boutté, dated August 20, 1946, wherein numerous named individuals were recognized as "Members of the Family of Jean Baptiste Boutté” and, as such, were declared to be owners of United States Patent No. 1,110,173, issued to the members of the said family on January 13, 1941, and granting to them some 20,770 acres of land therein described (encompassing the whole of Barataría Island including the strip here in dispute) — subject, however, to recognition of ownership of John C. Hollingsworth and Hubert M. Ansley, in the proportion of J4 each of the virile share of each of the parties therein recognized as Members of the Family, in consideration of services rendered.

Judgment was handed down by the District Court on February 23, 1951, in favor of the intervenor, John C. Hollingsworth, and against all parties originally plaintiff and all parties originally defendant, ordering that they “deliver possession of the property’.’ in dispute to Hollingsworth “as owner in indivisión” of an undivided one-fourth interest. It is from that judgment that the present appeal was taken.

It appears that the island of Barataría was granted by the French Government to M. M. Villars and Dubreriel, said grant having taken place prior to the year 1754, and that at the time of the Louisiana Purchase the property was owned by one Pierre Lavigne, whose heirs sold to the brothers Hilaire Boutté and Jean Baptiste Boutté, jointly, by deed of July 8, 1805. By mesne conveyance Francois Zenon Boutté (the son of Antoine Boutté and a nephew of the above named men) acquired Hilaire’s half interest on July 5, 1819. Meanwhile, Jean Baptiste Boutté having gone into bank7 ruptcy, his interest was purchased by a son, Philippe Boutté, on June 17, 1815. It further appears that there had been a partition of the property between the brothers Jean Baptiste and Hilaire, the former taking the northern portion of the island and the latter the southern portion. T^hat there was such a partition is evidenced by all of the transactions relative to the property that took place following Francois Zenon’s purchase of Hilaire’s share. Philippe Boutté (who had acquired his father’s interest at the bankruptcy sale) executed an instrument on June 13, 1820, acknowledging that his acquisition had been made for the joint account of himself and his brothers and sisters; and in the same instrument, in which he was joined by his brothers and sisters, they partitioned the property, each receiving a designated portion of the northern half and later disposing of it in full ownership to third persons. Similarly, Francois Zenon Boutté (who had acquired Hilaire’s half) in disposing of his property made sales relative to the south half and in full ownership. There is also evidence that the surveyor Lafon made a plan of the partition. This is reflected by the procés verbal of a survey by Allon d’Heme-court attached to an act of sale of October 9, 1837, by Philippe Boutté, acting in his capacity as administrator of the succession of his brother Godefroy and disposing of land which had been allotted to Godefroy in the division of the northern part of the island, in which d’Hemecourt, after reciting that the brothers had divided the island “in half between them,” states: “This knowledge is the result of a plan of Mr. Lafon inserted in this register and again in the register of the Bureau of Lands at New Orleans. This plan * * * indicates * * * the division into two equal parts * * *. This line of division has been shown me on the places by Mr. Zenon Boutté and by Mr. Thisapherne Boutté and have perfectly recognized same by the blazing of the trees; * * The said procés verbal was approved and signed by “property owners interested,” including Francois Thisapherne Boutté and Francois Zenon Boutté. Clearly, therefore, not only was the partition acted upon in fact, but it was ratified by the signatures of the parties to the various instruments mentioned above.

The strip of land involved in this litigation is within the southern portion of the -island, situated in the rear of two tracts sold by Francois Zenon Boutté, the one to Mrs. Hortense Duvalle on August 26, 1819, and the other to Mrs. Marie Duvalle on the same date, and insofar as the record discloses was never disposed of by him. Edgar H. Powell, a title abstractor, discovered the location of this property some time during the early 1930’s and sought out those whom he thought to be the heirs of Francois Zenon Boutté; and erroneously believing that Francois Thisapherne Boutté, the first cousin of Francois Zenon, had been his nearest of kin and sole heir, ■Powell obtained contracts of employment from one hundred sixty-two descendants of Francois Thisapherne Boutté and had them placed in possession of the land by judgment of June 26, 1936, in Succession of Francois Zenon Boutté, mentioned earlier in this opinion. Powell had his interest recognized in the judgment and at once transferred a half to Messrs. Alexis Brian and A. Morgan Brian, attorneys at law, who had represented the parties in obtaining the ex parte judgment. The Brians transferred the surface rights in their interest in. the land to Edwin P. Brady on September 7, 1936.

From the foregoing it is obvious that the interest acquired by Powell, the only defendant now remaining in the case, based on his contracts of employment from the heirs of Francois Zenon Boutté’s first cousin, must yield to the claims of the plaintiffs as descendants of brothers and sisters of the last record owner.

In passing to the rights .and claims of the intervenor, we deem it necessary to point out that the record in this case comprises not only the transcript of proceedings and the exhibits in the instant suit on its three separate journeys to this Court, but the records in five other cases as well, these having been either made part of the pleadings or filed in evidence, and bearing the following titles and district court docket numbers: Ernest Boutté, et al., v. Edwin P. Brady, et al., No. 6,661; Succession of Francois Zenon Boutté, No. 11,842; Succession of Jean Baptiste Boutté, No. 14,363; Edward P. Escoffier v. Stephen Paul Baudier, No. 15,178; and L. Maurice Baudier, et al., v. Hubert M. Ansley and John C. Hollingsworth, No. 19,941; and to throw light thereon we must call attention to these several cases, which culminated in the judgment which forms the basis of intervenor’s claim.

A little more than two years after the present proceeding (filed on July 26, 1938) was instituted, Hollingsworth as attorney for Stephen Paul Baudier, Jr., and Vernon J. Main, petitioned the Court (October 10, 1940) to have Baudier and Main appointed administrators of the succession of Jean Baptiste Boutté, alleging that they were his direct heirs, that the decedent had departed this life, intestate, in 1823, leaving inchoate rights involving land situated in Jefferson Parish, and praying that letters of administration issue jointly to them; and on the same date a petition of intervention; joining in the prayer for the appointment of the said administrators, was filed by Hollingsworth as attorney on behalf of a very large number of persons claiming to be heirs of Jean Baptiste-Boutté. Baudier and Main were confirmed as administrators and an inventory was taken, showing the estate to consist solely of “All of the title and interest of Jean Baptiste Boutté under Claim No. 166, third class, to the Family of Boutté as reported by Sam Hooper [Harper], Commissioner of the Eastern District, dated January 6, 1821, American State Papers, Duff Green Edition, Volume 3, page 518,” followed by a description of the property, totaling 20,-770 acres.

The above reference is to a report listing a number of private land claims in the eastern district of Louisiana, prepared by Sam M. Harper, Register of Land Office, E. district of Louisiana, under date of January 6, 1821, made to the Secretary of the Treasury pursuant to the provisions of the Act of May 11, 1820, Chapter 87, entitled “An act supplementary to the several Acts for the adjustment of Land Claims in the State of Louisiana,” directing that such a' report be made by the Registers together with the substance of the evidence in support of the claims and their opinion of the credit to which such evidence was entitled. In his report Register Harper recommended for confirmation by the United States, Claim No. 166, affecting the island of Barataría: “The family of Bontté (Jean B. Bontté) successor of Hilaire Bontté, Tisapherne Bontté, claim a tract of land, being an island called Barrataria, in the district of Barrataria, bounded north by the Bayou Villars, east by Bayou Onihas and Bayou Rigolets, south by a place called the Temple, and west by Pierrot, and the lake of Onihas, containing fourteen and fifteen leagues in circumference. The claimants prove by affidavits that this land was granted by the French Government to M. M. Villars and Dubreriel before the year 1754; that, in that year, it was bought at auction by Villars, the son;- that it has since descended to them by purchase, and by them possessed and occupied upwards of forty years. It appears a great portion of this island is unfit for cultivation, and that the family claiming it are numerous.” The above claim together with the other claims submitted by Harper were communicated to the Senate on January 13, 1823, and by Act of February 28, 1823, 3 Stat. 727, it was provided “That the claims for lands within the eastern district of the state of Louisiana, described by the register of the land office of the said district, in his report to the Secretary of the Treasury, bearing date the sixth of January, one thousand eight hundred and twenty-one, be, and the samé are hereby, confirmed, against any claim on the part of the United States(Emphasis supplied.)

It appears, however, that on January 13, 1941, a few months after the taking of inventory in the Succession of Jean Baptiste Boutté, the United States through its Land Office recognized the “Private Land Claim” No. 166 for the tract of land called! “Barrataria,” confirmed by Act of Congress on February 28, 1823, which hadi been duly surveyed by plat approved December 8, 1842, and issued its Patent No.. 1,110,173 to the “family of Jean B. Boutté”' and to their heirs and assigns, granting to. them the therein described lands, aggregating 20,770.98 acres.

On June 27, 1941, the administrators, stating that they desired to retain other counsel and had terminated the services of Ansley (whom they had employed) and Hollingsworth (who had been brought into, the case by Ansley), sought to remove them by rule. This resulted in a series of moves, by Hollingsworth against the administrators, consisting of (1) a petition of the-same date (June 27, 1941) presenting the names of other persons for consideration, and qualification as additional administrators or, alternatively, praying that the appointments <?f Baudier and Main be vacated for the causes alleged therein; (2) a further petition (August 16, 1941) in the-name of three “heirs of decedent,” stating-that, contrary to allegations in the original petition, there were in fact no debts of Jean Baptiste Boutté and no need for any administration of his estate ; (3) an independent action, filed on December 19, 1941, entitled Edward P. Escoffier, et al. v. Stephen P. Baudier, et al., to have the administrators removed; and (4) on the same date, a new petition in the Succession proceedings to rescind the administration and to cancel the appointment of the administrators. The Escoffier v. Bau-dier suit was consolidated for trial with that of Succession of Jean Baptiste Boutté and, on August 20, 1946, the judgment was rendered which forms the basis of the claims of the intervenor. In that judgment the trial judge held that the appointment of the administrators was void, having been improvidently granted under the erroneous assumption that the U. S. Land Office required such appointment so that a patent, when issued, could be issued in the name of legal representatives of claimants; and in the judgment he further decreed the petitioners named therein to be “ * * * owners as Members of the Family of Jean Baptiste Boutté of the United States Patent No. 1,110,175 [sic] * * * subject to the recognition now made and Ordered, Adjudged and Decreed, that John C. Hollingsworth and Hubert M. Ansley, in the proportion of one-fourth 04) each, are decreed * * * to be the Owners of the other One-Half (}4) of all of the said United States Patent Rights and the Lands therein granted.”

It is the plaintiffs’ contention that the patent issued in 1941 to the “family of Jean B. Boutté” did not invest the heirs of the confirmees with some species of new title; it was merely a recognition of the claims of plaintiffs and others, and further evidence of the confirmation of title by Act of Congress in 1823, the said Act being merely a quitclaim of any interest on the part of the United States.

The brief filed by intervenors’ counsel has been carefully studied, and from our analysis we do not find that the above facts relating to the title, as reflected by the record, are in any way disputed. The sole claim advanced — without citing authorities, and referring us only to the brief of ami-cus curiae — is, that the law relative to patents sets up a period of respite, after which a confirmation or patent may not be attacked except for fraud. Counsel in a very ingenious argument seem to imply that plaintiffs in some manner have lost their right to claim the property because they cannot show a previously existing confirmation or patent in their own name, and therefore “have failed to overcome the inherent title of Jean Baptiste Boutté as shown by the confirmation;” and in as much as they have failed to allege or prove any fraud in this case, or that they have a title derived from Jean Baptiste Boutté or his heirs, they are without standing in court.

The Supreme Court of the United States in the case of Langdeau v. Hanes, 21 Wall. 521, 88 U.S. 521, 22 L.Ed. 606, 609, very aptly pointed out that “In the legislation of Congress a patent has a double operation. It is a conveyance by the government when the government has any interest to convey; but where it is issued upon the confirmation of a claim of a previously existing title it is documentary evidence, having the dignity of a record, of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation.” And in Whitney v. Morrow, 112 U.S. 693, 5 S.Ct. 333, 334, 28 L.Ed. 871, 872, the Court said: "If, by a legislative declaration, a specific tract of land is confirmed to any one, his title is not strengthened by a subsequent patent from the government. * * * It would thus be .an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of congress.” (Emphasis ours.)

In the instant case, there cannot be the slightest doubt that long before the cession to the United States of the territory of Louisiana, the island of Barataría had'passed into private ownership; .consequently, it never became incorporated into t.he public domain of the United States; and therefore the confirmation, patents, and other dealings of the United States government with reference thereto were simply recognitive of the private existing claims, intended and purporting to operate as mere quitclaims. See Louis v. Giroir, 40 La.Ann. 710, 4 So. 878; Langdeau v. Hanes, supra; Whitney v. Morrow, supra. It therefore follows that the widow and heir of the intervenor derive no aid from the patent issued on January 13, 1941.

While the then living owners .were sought to be recognized and their claims recommended for confirmation in Harper’s report of January 6, 1821, their identification suffers somewhat from lack of clarity; yet there is nothing in the wording of the report to derogate or take away front the claim of Francois Zenon Boutté. Certainly it was never the government’s intention, either through its Register, or in confirming the report of the Register, to divest any then-existing titles; and while the wording of the claim is not as clear as. might be desirable, we think, upon analysis with the background of the title history in mind, that support is given to the contention of the plaintiffs that by the words “successor of Hilaire Bontté” was meant Francois Zenon Boutté, since the latter was in fact the successor of Hilaire; and that the. reference to “The family of Bontté (Jean B. Bontté)” can only refer to> the five children of Jean Baptiste Boutté who at the time owned the other half of the island, through Philippe Boutté’s purchase for their account from his father’s-syndic at the bankruptcy sale of June 17,, 1815; and obviously the “Tisapherne Bontté” mentioned therein (one of the five children to whom was allotted a specific tract in the northern part of the island when they, the children of Jean Baptiste Boutté, partitioned -the property by the instrument of June 13, 1820) was one of those the Register had in mind when he observed “ * * * that the family claiming it are numerous.”

For the reasons assigned, the judgment of the lower court is reversed and set aside; and it is now ordered, adjudged and decreed that there be judgment in favor of the original plaintiffs or their successors and against the defendant Edgar H. Powell, and Mrs. Maude Snyder Hollingsworth and Mrs. Shirley Hollingsworth' Keith, successors to the intervenor John C. Hol-lingsworth, recognizing the said plaintiffs and their heirs or successors as heirs of Francois Zenon Boutté and placing them in possession of the portion of Barataría Island, in the proportions listed beside their respective names in the pleadings, more fully described as A certain tract of land situated in the Parish of Jefferson in Township 16 South, Range 23 East, and partly in Township 16 South, Range 22 East oh the Island of Boutté, same being ■a strip of land five arpents in width and beginning at a 'distance of twenty-five ar-pents from Bayou Barataría at the rear line of the two tracts of land conveyed by Francois Zenon Boutté to Madam Hortense D. Duvalle as per act before Phillippe Pedesclaux, N.P., on August 26, 1819, and the other to Mrs. Marie M. Du-valle by act before the same notary on August 26, 1819, and extending thence between parallel lines five arpents to Bayou Perot, a distance of six miles, more or less, and being bounded on the north, east and south by lands formerly belonging to Jonathan Davis, later to J. T. Oriard and now to N. Rosenberger, et al., or assigns, and on the west by Bayou Perot. All costs of this proceeding up to the time of the disclaimers filed respectively on behalf of the Brians and Edwin P. Brady to be paid jointly by Edgar H. Powell, Alexis Brian, the heirs of A. Morgan Brian, and Edwin P. Brady; and thereafter, beginning with the intervention of John C. Hollingsworth, to be paid by his successors Mrs. Maude Snyder Hollingsworth and Mrs. Shirley Hollingsworth Keith, and Edgar H. Powell.

      . The action is one to establish title under the provisions of Act 38 of 1908 (incorporated in the USA-Revised Statutes of 1950 as LSA-R.S. 13:5062), none of the parties being in possession.

      . Namely: Marie Louise Hyacinthe, Antoine Hilaire, Modeste, D. Louis Hi-laire, Juan Leon, Celestine, and Jean Baptiste (born in 1792, the namesake of an uncle who figures prominently in the case).

      . At the time there were only two defendants left, Powell and Brady; the latter filed his disclaimer on September 7, 1948-although he had not participated in the later phases of the trial on the merits.

      .Hubert M. Ansley, counsel initially employed by the plaintiffs, who was responsible for Hollingsworth’s association in the case, withdrew as counsel on April 22, 1947, some days after Hollingsworth filed his intervention and third opposition, stating that he had lately become aware that his connection in the instant suit was in ■ conflict with his activities as counsel in the Succession, of Jean Bap* ■tiste Boutté.

      . During the pendency of the appeal, Hol-lingsworth died; Mrs. Maude Snyder, surviving widow in community, and Mrs. Shirley Hollingsworth Keith, his sole heir, were made parties.

      . The brothers and sisters of Philippe Boutté were Francois Thisapherne, Aza-lie, Stephanie Hermoine, and Godefroy.

      . See LSA-Civil Code of Louisiana, Articles 892, 897.

      . Pursuant thereto a rule issued ordering the co-administrators to show cause why their appointment should not be set aside and their office vacated, but upon application to this Court by Baudier and Main, alternative writs issued prohibiting the trial of the rule, and on December 1, 1941, we held that the administrators could not be removed by-summary proceedings. See Succession, of Boutté (In re Baudier), 199 La. 182, 5 So.2d 543.

      . This was “in consideration of their services rendered to the plaintiffs under contract made with them by the Jean Baptiste Boutté Corporation, and by the individual members thereof, and also in consideration of the benefits accruing by their work to other members of the Family not employing them, but for whom they acted as Negotiorem Gestors, * *

      . When this case was argued, successors to the intervenor were not represented in court either by counsel or by brief. . However, with leave of this Court, upon the representation by their attorney that he was not served with copy of brief of the appellants and did not know that the case had been set for trial on that date, he was allowed to file a brief.

      . A perusal of that brief reveals that counsel were laboring under several incorrect premises, resulting in (1) the assertion that because of failure to comply with certain acts of Congress concerning land claims in Louisiana (among others, the Act of May 11, 1820, Chapter 87, quoted in part in the text) plaintiffs are forever barred from asserting their claim; and (2) the statement that persons claiming public lands are considered to have abandoned the claim when not asserting it within a reasonable time; and reference to the several cases cited will show that they are not applicable from either a factual or a legal standpoint.

      . United States v. Percheman, 7 Pet. 51, 32 U.S. 51, 8 L.Ed. 604; Langdeau v. Hanes, 21 Wall. 521, 88 U.S. 521, 22 L.Ed. 606; Ryan v. Carter, 93 U.S. 78, 23 L.Ed. 807; Louis v. Giroir, 40 La.Ann. 710, 4 So. 878; Breaux v. Lefort, 209 La. 503, 24 So.2d 879; Gonsoulin’s Heirs v. Gulf Co., 5 Cir., 116 F. 251.


author: McCALEB, Justice.

text:
    228 La. 769
    SIXTH BAPTIST CHURCH OF NEW ORLEANS v. Sterling CINCORE et al.
    No. 41698.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Gatlin & Murphy, New Orleans, for plaintiff-appellant.
    Rudolph F. Becker, ■ Jr., New Orleans, for defendants-appellees.
   McCALEB, Justice.

This is a suit brought on behalf of the Sixth Baptist Church of New Orleans, a nonprofit, religious corporation, for an injunction against several of its members who are allegedly assuming to act as officers of the corporation and to conduct its affairs when they have not been duly elected and constituted as such as provided by its Charter.

Conformably with the prayer of the petition, a rule issued for the defendants to show cause why they should not be restrained in their actions and particularly from dissipating certain funds amounting to $1,275.

Defendants filed exceptions of vagueness and no right or cause of action to the petition and, on the day that these exceptions were set for trial, counsel for the opposing litigants agreed in open court that there would be a new election of members of the “Board of Trustees” of the Church and that this election should be called and held under the direction of the Court. The judge, acting -approvingly on this stipulation, forthwith ordered that an election of officers be held under certain conditions set forth by him. However, the election did not materialize as the litigants could not agree upon the qualifications necessary to entitle the members of the congregation to vote. Counsel for plaintiff then submitted to the Court a list of members whom they contended were qualified to vote and obtained a rule for defendants to show cause why these persons should not be declared eligible. Following a hearing, the rule was dismissed and it is from that judgment that plaintiffs now prosecute this appeal.

It will be seen from the foregoing that the action has lost its original purpose, having been converted into an extrajudicial election contest. In 'any case, it is clear that this Court is without appellate jurisdiction as the only basis upon which review here is sought is that the amount in dispute exceeds $2,000. An examination of the original demand discloses that plaintiff is seeking enforcement of a civil right to effectuate the ouster of defendants who, it is claimed, are usurping the offices of the corporation. There is neither allegation nor proof exhibiting that either plaintiff or defendants will sustain monetary loss by reason of the litigation. Without a showing of the value of the right in contest, this court is without jurisdiction. See H. G. Hill Stores Realty Co. v. Latter, 227 La. 791, 80 So.2d 410 and City of New Orleans v. La Nasa, 227 La. 953, 81 So.2d 7 and authorities cited in those matters.

It is therefore ordered that this appeal be transferred to the Court of Appeal for the Parish of Orleans, provided that the record is filed in that Court within thirty days from the date of the finality of this decree, otherwise, the appeal shall be dismissed. The costs incurred in this Court are to be paid by appellant.