text:
    Ruby J. CARTER, Petitioner, v. Hunter J. CARTER, Sr., and Clara Brown, as administratrix of the estate of Hunter J. Carter, Jr., deceased, Respondents.
    Supreme Court of Florida. Special Division A.
    June 6, 1956.

      Latham & Davenport, Pensacola, for petitioner.
    Richard H. Merritt, Pensacola, for respondents.
   THORNAL, Justice.

Petitioner Ruby J. Carter, one of the defendants below, seeks review of an interlocutory order entered on a motion for summary judgment in an interpleader proceeding.

The questions to be determined are whether a wife who was acquitted of the alleged criminal homicide of her husband is entitled to receive the proceeds of an insurance policy on his life wherein she was designated primary beneficiary and what degree of proof is required in a civil proceeding to establish the felonious nature of the homicide. Incidental questions are hereafter pointed out.

Hunter J. Carter, Jr. was allegedly killed by his wife, the petitioner Ruby J. Carter. At the time of his death, his life was insured by the Equitable Life Assurance Society of the United States under a group policy. The certificate of insurance, according to the complaint, named the wife Ruby J. Carter as beneficiary. The complaint alleges that the insurance policy and group certificate provided that in the event that “there be no designated beneficiary, or no beneficiary surviving at the death” of the insured, then the proceeds would be payable to the first surviving class of successive preference beneficiaries, to-wit, (a) the widow, (b) surviving children, (c) surviving parents, (d) surviving brothers or sisters, (e) executors or administrators. The insurance certificate does not appear in the record; therefore the case is disposed of on the basis of the foregoing allegations of the pleadings purporting to show the contents thereof.

The Equitable Life Assurance Society, being dubious of the legal recipient of the proceeds of the policy, filed its complaint as a bill of interpleader alleging that Hunter J. Carter, Jr. met his death as a result of gunshot wounds claimed to have been inflicted by his wife, Ruby J. Carter; that she was tried on a charge of second degree murder and acquitted; that in addition to his wife, the insured was survived by his father, the defendant-respondent Hunter J. Carter, Sr., but not by any children or brothers or sisters. Respondent Clara Brown, as administratrix of the estate and a claimant to the proceeds, was also named as a defendant. After interpleading the three defendants, the trial judge excused the Equitable from further participation in the cause.

The surviving widow, Ruby J. Carter, claims the insurance because she contends that having been acquitted of the alleged criminal offense, the killing was clearly not felonious.

The father, Hunter J. Carter, Sr., claims by his answer that he is entitled to the insurance proceeds because he says the widow admitted killing her husband, that the act was wrongful and that it would be against public policy for her to receive the money.

On the same basic contention, Clara Brown, the administratrix, claims the insurance but in addition contends that the father should not receive it because the •various classes of priority recipients were contingent upon the insured dying with “no beneficiary surviving” and that although she is not entitled to the proceeds under the law, the widow Ruby did survive and the widow having survived, the insurance money cannot pass down the line of descendency to the father because of the provisions of the policy itself.

The record also reveals that although Ruby Carter was acquitted by the jury, when she was tried on a charge of second degree murder, she originally pleaded guilty to manslaughter but was permitted to withdraw the plea and go to trial on a plea of not guilty. In doing this she obviously exercised good judgment because the jury in the criminal trial agreed that she was not guilty.

After all of the pleadings were filed, the petitioner moved for a summary judgment. Her motion was denied and in his order, the Chancellor decreed that the “issues will be made up to determine by a preponderance of the evidence whether the claimant wife feloniously killed her husband and further proceedings had in accordance with these views”. It is this order that is subjected to review by petition for certiorari.

The petitioner-widow contends that her acquittal in the criminal proceeding precludes any assault on her right to receive the proceeds of the insurance policy as the designated beneficiary and further that Section 222.13, Florida Statutes, F.S.A., controls distribution of the proceeds of an insurance policy to the exclusion of other considerations.

The respondents, father and administra-trix, contend that acquittal in the criminal case is material only under Section 731.31, Florida Statutes, F.S.A., relating to inheritance by an alleged “murderer” but has no relevancy to the pending question and that Section 222.13, Florida Statutes, F.S. A., is an “exemption statute” rather than a distribution statute. It is contended by respondents that the results of this cause are concluded by common law principles rather than statutory enactments.

A solution to the problem involves a disposition of several incidental matters. We must first decide whether the cited statutes govern and if not, then the extent to which we will apply common law principles. The effect of the verdict of acquittal in the criminal case must be evaluated and this involves a consideration of the degree and burden of proof that will govern the civil action on the policy. Finally, the ultimate recipient of the proceeds of the policy must be determined in the event that the named beneficiary, to-wit, the widow, should be found disqualified to receive them.

Section 731.31, Florida Statutes, F.S.A., as applicable when this problem arose read as follows:

“Any person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any portion of his estate as a. legatee or devisee. The portion of the decedent’s estate to which such murderer would otherwise be' entitled shall pass to the persons entitled thereto as though such murderer had died during the lifetime of the decedent.”

The last cited statute was originally enacted as Section 32 of Chapter 16103, Laws of Florida, 1933, otherwise known as the 1933 Probate Act. A casual examination of Section 731.31, Florida Statutes, F.S.A., reveal that it contains no language at all relating directly or by necessary implication to the right of a designated beneficiary to receive the proceeds payable under an insurance contract. It is merely a statutory restriction on the right to' inherit or take under the will of a de.cedqnt, which right is prescribed by .other sections ,of the same Act. We have.. considered Section 731.31, supra, in other cases to be mentioned later. None of these cases, however, involved life insurance contracts and our {¡resent consideration leads us to the conclusion that this section clearly does not apply to the controversy before us.

Section 222.13, Florida Statutes, F.S.A., offers no greater difficulty. While in a measure the statute does provide the manner in which the proceeds of an insurance policy shall be distributed under stated circumstances, it is perfectly clear that it is primarily, if not entirely, an exemption statute that protects the proceeds of a life insurance policy against the demands of creditors in certain cases. It was so construed in Milan v. Davis, 97 Fla. 916, 123 So. 668 (see particularly opinion On Petition for Rehearing). The conclusion that Section 222.13, Florida Statutes, F.S.A., is obviously an exemption statute and hás nó bearing on the problem before us is in some measure supported by the fact that it has consistently been included as a part of Chapter 222 dealing with “Homestead and Exemptions” in each biennial statutory revision adopted by the Florida Legislature. We find nothing in this Act that would lead us to the conclusion that it is any more than a legislative enactment fof the protection of the immediate family or the designated beneficiary of an insured against the claims of his creditors.

We have been referred to no statute that controls the situation before us. Our own research reveals none. We must, therefore, explore- the broad firmament of the common law and adjudicated cases in order to locate the pole star that will guide us to a safe conclusion. We should be cautious to avoid confusing the issue by applying to insurance cases those precedents that deal with the right of inheritance under statutes such as Section 731.31, supra. It becomes necessary to' consider certain broad basic principles upon which' we must rely.

It is an axiom of the common law, supported by admirable concepts of common justice, that no person should be permitted to benefit from his own wrong. It is offensive to our sense of right that a wrongdoer be allowed to exploit his wrongs to the injury of another and to the profit of himself. The principle has been applied in many cases involving claims under' insurance policies brought by beneficiaries who without excuse or justification killed the insured.

The rule is generally announced in 29 Am. Jur., Insurance, Section 1310, p. S>79, as follows:

“It is a well-settled rule that a beneficiary in a life insurance policy who murders or feloniously causes the death of the insured forfeits all rights which he may have in or under the policy. This rule is based upon public policy and upon the principle that no oiie shall be allowed to benefit from his own wrong. It is not necessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of a beneficiary who intentionally kills the insured, although, of course, the parties may incorporate in the contract a clause creating such an exception or providing for a forfeiture of the beneficiary’s rights in the event he murders the insured. Nor is 'it nécessary, to defeat the rights of the beneficiary in such case, to show that the purpose was to obtain the proceeds' of the policy; it is sufficient that the killing was the intentional and wrongful act of the beneficiary.” '

One of the landmark insurance cases on the subject was Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 6 S.Ct, 877, 881, 29 L.Ed. 997, where it was concluded:

“* * * It, would be a reproach to the jurisprudence of the country if one could recover insurance money payable on the death ’ of a party whose life he had feloniously taken. As well might he recover ' insurance money upon a building that he had willfully fired.”

In Horn v. Cole, 203 Ark. 361, 156 S.W. 2d 787, 790, the rule was thoroughly discussed with the following conclusion:

“This court has repeatedly held that where the beneficiary in a policy of life insurance wrongfully kills the insured, public policy prohibits a recovery by the beneficiary. In the case of Metropolitan Life Insurance Company v. Shane, 98 Ark. 132, 135 S.W. 836, 839, this court said: ‘The willful, unlawful, and felonious killing of the assured by the person named as beneficiary in a life policy forfeits all rights of such person therein. It is unnecessary that there should be an express exception in the contract of insurance forbidding a recovery in favor of such person in such event. On considerations of public policy the death of the insured intentionally caused by the beneficiary of the policy is an excepted risk so- far as the person thus causing the death is concerned.’ ”

It is interesting to note that in a later case, Barnes v. Cooper, 204 Ark. 118, 161 S.W.2d 8, the Supreme Court of Arkansas held that a wife who kills her husband is not thereby precluded from taking a dower interest in his estate unless convicted of murder. We ourselves have so held. See Hill v. Morris, Fla.1956, 85 So.2d 847.

A more extensive quotation from authorities would in our view un-justifiedly lengthen this opinion. The courts appear to be practically unanimous in the holding that in the absence of a contrary statute, a beneficiary who unlawfully and intentionally takes the life of the insured thereby disqualifies himself to receive the proceeds of the insurance policy. See American Life Ins. Co. v. Anderson, 246 Ala. 588, 21 So.2d 791; Protective Life Ins. Co. v. Linson, 245 Ala. 493, 17 So.2d 761; Smith v. Greenburg, 121 Colo. 417, 218 P.2d 514; Annotations to Duncan v. Schoeffler, 40 Wash.2d 850, 246 P.2d 445, 39 A.L.R.2d 473, 500; and Annotations to Beck v. West Coast Life Ins. Co., 38 Cal.2d 643, 241 P.2d 544, 26 A.L.R.2d 979.

On the basis of the authorities heretofore cited we conclude the initial aspect of our problem by adhering to the rule that since a wrongdoer willl not be permitted to profit- by his own wrong, the beneficiary of a life insurance polity will not be permitted to receive the proceeds of a policy on the life of one whom he unlawfully and intentionally killed.

By the order under review, the trial judge decreed that the issues in this cause would be decided by a “preponderance of the evidence”. The petitioner insists that the verdict of acquittal in her trial on ■the charge of second degree murder is admissible in this civil action to preclude any consideration of her guilt in the homicide of her husband. This court is committed to the rule that the verdict and judgment in a criminal proceeding are not admissible in a civil proceeding as evidence of the guilt or innocence of a party to the civil cause. The rule is not without some exceptions, for example, under Section 731.31, Florida Statutes, F.S.A., where the ultimate fact of conviction of murder is a condition precedent to denying inheritance to one entitled to inherit. The instant case, however, is not within any of the exceptions and we agree with the trial judge that the verdict and judgment acquitting the petitioner in the criminal action is not admissible in evidence in this case. See Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174; and State v. Dubose, 152 Fla. 304, 11 So.2d 477.

The respondents on the other hand contend that the felonious nature of the killing was established by the petitioner’s plea of guilty to manslaughter which was withdrawn in the criminal case. Consistent with the rule that the judgment of acquittal is not admissible, we do not feel that the plea of guilty to manslaughter, which was withdrawn, is admissible as evidence against the petitioner in this civil action. It could hardly be fairly contended that a defendant in a criminal proceeding should be charged with the pleadings on some obviously tactical maneuver on the criminal side of the court and at the same time be denied the benefit of the judgment and verdict in her favor. The issues in this civil case, as the trial judge ruled, should be decided on the basis of the preponderance' of the evidence produced in this case entirely exclusive of the record in the criminal proceeding. This likewise ha9 been the rule in similar cases in other courts. Horn v. Cole, 203 Ark. 361, 156 S.W.2d 787; Gholson v. Smith, 210 Miss. 28, 48 So.2d 603; American Life Ins. Co. v. Anderson, 246 Ala. 588, 21 So.2d 791.

The record before us reveals nothing at all with reference to the facts that produced the homicide. However, if at the trial a preponderance of the evidence should establish the fact that the homicide was intentional and unlawful in nature and therefore was without the purifying effect of excuse or justification, the petitioner insofar as this cause is concerned would be confronted by the rule heretofore announced that a person will not be permitted to profit by his own wrong. If, however, the evidence preponderates in favor of justification or excuse, an example of which would be self-defense, accident or insanity, then there would be no area for the application of the rule that would prevent her recovery. The burden of proof in the first instance will rest on the party who alleges that the killing was intentional and unlawful. The order of the Chancellor provided that a preponderance of the evidence would govern whether the claimant-wife “feloni-ously killed” her husband. By the expression “feloniously killed” in this particular type of situation, we understand the Chancellor to have reference to an “unlawful and intentional” killing. As so construed, we find no objection to the use of the word “feloniously”. It is altogether appropriate to permit the establishment of these facts by a preponderance of the evidence which is the degree of proof required in civil cases, for the perfectly obvious reason that in a criminal proceeding, which imposes upon the State the burden of proving guilt beyond a reasonable doubt, a jury, being conscious that it is the custodian of the life- and liberty of an accused is often apt to emphasize in its thinking extraneous facts and circumstances that are allowed to mitigate the severe penalties of the criminal law. These misplaced emphases cannot be permitted to influence the decision in a civil proceeding where the rights of the parties are evaluated in an entirely different atmosphere undisturbed by those invisible and intangible cross-currents that we all know oftentimes subconsciously influence the judgment of the criminal court jury.

Finally, we are confronted with a decision as to the ultimate recipient of the proceeds of the insurance money here involved in the event that it should be determined that the petitioner is not entitled thereto. The trial judge decided that the father of the deceased should receive the proceeds, there being no surviving children, and the father being next in order of designated priority. The respondent, Clara Brown, as administratrix of the estate of the deceased, claims the proceeds and the petitioner says that even though she is precluded from receiving the insurance as a designated beneficiary, nevertheless, if the money goes to the estate then she is entitled to receive it as a beneficiary of her husband’s estate.

Although the problem is not without difficulty, we are of the view that the trial judge again ruled correctly. We wish to underscore the fact that we are not here ruling that this petitioner has been shown to have been precluded from receiving the insurance proceeds as a designated beneficiary because the facts of the matter are not before us. We do hold that if such is established upon a subsequent trial, then the money should go to the surviving beneficiary next in line according to the policy designation.

There are very few cases where the courts have been called upon to resolve this particular issue. However, we align ourselves with the rule announced in Beck v. West Coast Life Ins. Co., 38 Cal.2d 643, 241 P.2d 544, 26 A.L.R.2d 979, wherein it was held that under circumstances similar to those in the case at bar and under policy provisions analogous to those under consideration the beneficiary next in priority to the excluded beneficiary should receive the proceeds of the policy in preference to the estate of the deceased. There is sound reason for this position. Although obviously not a will, the beneficiary clause of a life insurance policy is in some measure analogous in principle to the disposition of one’s estate by will. It is usually ambulatory. It is almost always donative, and in a sense it is testamentary in character in that payment is customarily contingent upon the death of the insured. In view of the nature of the beneficiary clause, it would appear to be appropriate in construing it to endeavor to give effect to the intent of the insured if it is possible to do so without doing violence to the expressed language of the policy.

Some of the writers have undertaken to resolve the problem by declaring that the primary beneficiary becomes the trustee of a constructive trust and holds the proceeds for the use and benefit of the beneficiary next in priority. We think it unnecessary to complicate the problem with involved trust principles. It is perfectly clear that it was the intent of this decedent that if his widow could not receive the insurance, then it would go to his parents in the event that he had no children. While in this case we cannot conclude that the petitioner would be relegated to a status of one civilly dead, we can with safety conclude that when the policy provided for the distribution of the proceeds to various contingent beneficiaries if there was no design nated beneficiary “surviving at the death” of the insured, the language was intended to mean a beneficiary entitled to receive the proceeds. Undoubtedly, the deceased never contemplated that he would be killed by his wife, if he was. Certainly, if he had so contemplated, he would not have encouraged the act by establishing a reward in the form of a policy of insurance on his life.

We must assume that the word "beneficiary” as used in a life insurance policy comprehends beneficiary in its broadest legal aspect and in that sense it necessarily must be considered as having reference to the survival of a beneficiary eligible to take. Admittedly, there are those who apply a rule of strict construction to such provisions and by so doing arrive at the conclusion that the words “beneficiary surviving at the death” of the insured mean just exactly that, without the implication of the additional inference of an eligible beneficiary and that if the designated beneficiary survives but becomes ineligible by operation of law then the members of the various successive classes are prevented from taking because of the “survival” of the designated beneficiary. ’Under this rule the proceeds of the policy would go to the estate of the deceased. For a discussion of the latter view see Bullock v. Expressmen’s Mut. Life Ins. Co., 234 N.C. 254, 67 S.E.2d 71. However, the rule of the Bullock case has been adversely criticized. See 30 N.C.L.Rev. 175, wherein among other things the author commented that “It is regrettable that the decision reached was contrary to the existing authority on the subject”.

We prefer to adhere to what we consider to be the better rule which is the one that appears to give effect to the intent of the insured by paying the proceeds to the beneficiary first in priority who is eligible under the law to receive the money. In this case it would be the respondent, Hunter J. Carter, Sr., in the event the petitioner is found to be disqualified. This would be so because in the absence of an express provision of the insurance policy, the insurance company itself is not to be relieved of the obligation to pay the amount which it contracted to pay merely because of the alleged wrongdoing of a particular beneficiary.

In order to forestall any concern that this opinion is in conflict with our holding in Hill v. Morris, Fla.1956, 85 So.2d 847, we feel that it is sufficient to point out that we do not consider that any such conflict exists. In that case we held that Section 731.31, Florida Statutes, F.S.A., would not preclude a widow from taking dower in her husband’s estate when she had been acquitted of his murder on the ground of insanity. We recognized there that the statutory bar of the Probate Act provision required a conviction of murder and' that under this statute an acquittal regardless of the reason prevented the application of the statute. Furthermore, we also recognized the clear rule of the common law that the right of dower was a preferred property right and that it would not be barred under such circumstances in the absence of a statute expressly doing so.

Petitioner relies on Peeples v. Corbett, 117 Fla. 213, 157 So. 510. The rule of that decision, although a sound one, does not control the instant case. There a son who murdered his father committed suicide before he was tried. In a contest involving the rights of the widow of the wrongdoing son, the court merely followed the language of the statute and held that her inheritance through her husband could not be denied her in the absence of allegation and proof that he had been convicted of murder. Obviously his suicide had relieved the State of a trial and forestalled any conviction and the applicability of the statute.

Because of the novelty of the questions here presented in this jurisdiction and in order to reconcile our solution of this problem with, our solution of the problem presented in Hill v. Morris, supra, we have dwelt at considerable length on the principles applicable. Ordinarily under 31 F.S.A. Supreme Court Rule 14, opinions of this court are not written on interlocutory appeals. We considered it appropriate to do so in this instante, however, in order to settle the law of the case and to furnish a guide to the trial court and litigants in the proceedings to follow.

For the reasons hereinabove stated, the prayer of the petition for certiorari is hereby—

Denied.

DREW, C. J., HOBSON, J., and PRUNTY, 'Associate Justice, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eddie ALLEN, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    May 30, 1956.
   PER CURIAM.

Affirmed.


text:
    Andrew V. BOSWELL, Appellant, v. Carol S. BOSWELL, Appellee.
    Supreme Court of Florida. Division A.
    May 30, 1956.
   PER CURIAM.

Affirmed.


text:
    William S. PECK, Appellant, v. Carroll A. LAKE, Appellee.
    Supreme Court of Florida. Division A.
    May 30, 1956.
   PER CURIAM.

Affirmed.


text:
    Philip G. BARI, Appellant, v. CITY OF NORTH MIAMI BEACH, a Municipality, Incorporated Under the Laws of the State of Florida, Daniel H. Diefenbach, Mayor, and Virginia H. Moore, City Clerk, Appellees.
    Supreme Court of Florida. Division A.
    May 25, 1956.
   PER CURIAM.

Affirmed.


author: HAWTHORNE, Justice.

text:
    230 La. 247
    STATE of Louisiana v. Christian W. BAUM, Sr., et al.
    No. 42778.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Chandler C. Luzenberg, Jr., Girard J. Fernandez, New Orleans, for defendants-appellants.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for ap-pellee.
   HAWTHORNE, Justice.

Our decision in this lottery case is controlled by the opinions we handed down recently in State v. Forsyth, 229 La. 690, 86 So.2d 530; State v. Reinhardt, 229 La. 673, 86 So.2d 530; State v. Mills, 229 La. 758, 86 So.2d 895; State v. Callia, 229 La. 796, 86 So.2d 909; State v. Crovetto, 229 La. 793, 86 So.2d 907; and State v. For-syth, 229 La. 1088, 87 So.2d 608. Christian W. Baum, Sr., Frank Schnell, and Lionel Barthelemy, Sr., are here submitting to us without oral argument their appeal from convictions of gambling as prohibited by Article 90 of the Louisiana Criminal Code, R.S. 14:90. The seven bills of exception which are the bases of appellants’ demand for a new trial present for our consideration no issue of law which has not already been passed on by us in the above cited lottery cases, and therefore we will affirm the convictions and sentences imposed by the lower court with a minimum of discussion.

Bill of Exception No. 1 involves the qualifications of Police Officer Gerald Hirt as a lottery expert, but does not impress this court. After Hirt had testified that he had made over 200 arrests in lottery cases, and had played lottery several times before he joined the police force, the trial judge ruled that Hirt could testify as an expert on lottery wagering. As this court said in State v. Mills, supra, it is well settled that the trial judge determines whether witnesses offered as experts are entitled to "be heard in that capacity, and his ruling will not be disturbed on appeal where no error appears. State v. Damico, 213 La. 765, 35 So.2d 654, relied on by appellants here is inapposite. In Damico the police officer who was permitted to testify on gambling was not shown to be competent as a result of knowledge acquired from practical experience and observation in his work as a police officer, whereas the contrary is true in the instant case. See State v. Normandale, 174 La. 835, 141 So-. 851.

Bills Nos. 2, 3, and 4 are also inconsequential. They were reserved in connection with the introduction into evidence of certain federal wagering tax returns and quarterly reports made to the Louisiana Department of Labor, Division of Employment Security. For our views on the admissibility of these public records, see our opinion in State v. Mills, supra; State v. Reinhardt, supra; and State v. Forsyth, 229 La. 690, 86 So.2d 530.

Bill No. 5 was reserved to the introduction in evidence of lottery paraphernalia seized by Hirt when he arrested appellants’ agent. Two of the exhibits were objected to because they bore a different date from that of the offense, and three were attacked because they were almost or entirely blank. We refused to sustain similar objections in State v. Mills, supra.

Bills Nos. 6 and 7 spring from the overruling by the trial judge of appellants’ motions for a new trial and in arrest of judgment. They contain the points raised in the bills discussed above, and also the time-lionored contention that the crime with which appellants are charged was not proven at their trial beyond a reasonable doubt. These bills present nothing for our review.

The convictions and sentences are affirmed.


author: McCALEB, Justice.

text:
    230 La. 251
    STATE of Louisiana v. August J. MILLS, Jr.
    No. 42788.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Rudolph F. Becker, Jr., New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., Michael E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for appellee.
   McCALEB, Justice.

Appellant, relying on three bills of exceptions, seeks a reversal of his conviction for gambling, as defined by Article 90 of the Criminal Code, LSA-R.S. 14t90, by conducting and operating a lottery. The subject matter of the bills has already been considered and determined adversely to appellant in our recent decisions in the following lottery cases: State v. Forsyth, 229 La. 690, 86 So.2d 536; State v. Reinhardt, 229 La. 673, 86 So.2d 530; State v. Mills and Vernaci, 229 La. 758, 86 So.2d 895; State v. Callia and Habeney, 229 La. 796, 86 So.2d 909; State v. Crovetto and Carbo, 229 La. 793, 86 So.2d 907 and State v. Forsyth, 229 La. 1088, 87 So.2d 608. Hence, extended discussion would be superfluous.

Bill No. 1, which was taken to the overruling of a motion for a bill of particulars, raises points identical with those passed on in State v. Mills and Vernaci and some of the other cases above cited. It is without merit for the reason given in those matters.

Bill No. 2 was reserved to the court’s action in admitting in evidence, over objection, certain lottery paraphernalia found in the possession of appellant’s co-defendant, Arthur Mallet, at the time of his arrest on November 11, 1954. It is said that these exhibits had no relevancy to the lottery operation of November 11, 1954 because they were not dated and, further, because they revealed that they were the property of the “Red Horseshoe” Lottery Company and the “Blue Horseshoe” Lottery Company whereas the reports made by appellant to the Louisiana Division of Employment Security and the Federal Gambling Stamp showed that appellant operated under the names of “The Original Blue” and “The Original Red Horseshoe”, there being no evidence exhibiting any connection between these lottery companies.

There is no merit in the bill. The evidence was clearly relevant in support of the state’s case. The question of whether the companies were the same as those listed in the quarterly reports to the Louisiana Department of Security and on the Federal Gambling Stamps was purely one of fact.

As to the objection that the lottery paraphernalia were undated, see State v. Mills and Vernaci, supra.

Bill No. 3, taken to the overruling of a motion for a new trial, merely reiterates the complaints made in the other two bills of exceptions, of which we have already made disposition.

The conviction and sentence arfe affirmed.


author: FOURNET, Chief Justice.

text:
    230 La. 254
    Cologero SCORSUNE v. STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS.
    No. 42389.
    Supreme Court of Louisiana.
    May 7, 1956.

      W. Crosby Pegues, Jr., D. Ross Banister, Philip K. Jones, Louis S. Quinn, Glenn S. Darsey, Baton Rouge, Francis X. Vinet, New Orleans, for defendant-appellant.
    Louis Lyons, Bossier City, for plaintiff-appellee.
   FOURNET, Chief Justice.

Cologero Scorsune is seeking to recover from the state, through its Department of Highways, the sum of $6,250 as compensation for the reduction in value of property owned by him fronting on the Shreveport-Bossier State Highway, Route No. 4, by reason of the appropriation of a strip from this property when the highway was widened and improved in 1952, the appropriation purportedly having been made under authority granted by him in a deed executed in 1931, which deed he claims to be null and without effect in that it describes no specific property conveyed, was without consideration, and without mutuality of consent.

This case was before us formerly on appeal from the judgment of the district court sustaining the state’s exceptions to the jurisdiction and of immunity from suit, which judgment we reversed. See, 224 La. 1031, 71 So.2d 557. Following our remand, the state answered, placing full reliance on the 1931 deed, and also on various pleas of prescription. At that time the plaintiff amended his petition, increasing his demand from $5,000 to $6,250, and pleaded, in the alternative, that if we found the 1931 deed sufficient to convey a right-of-way to the property appropriated, then the right therein granted, being a mere servitude, had prescribed and become extinguished for nonuse for ten years. The state is appealing from a judgment awarding him compensation in the amount of $5,000.

The record discloses that on June 14, 1924, Scorsune purchased for $100 Lots 4 and 5 of Block 5 in the McCormick Annex of Bossier City, Louisiana, as open and unimproved property, the tract then forming a rectangle measuring 176.09 x ISO x 96.15 x 5.54 feet. In 1931, prepáratory to work on Project No. 1801-B, covering approaches to the Red River bridge, the highway department secured from Scorsune a deed dated May 16, 1931, granting to the state a right-of-way across a portion of this land having a width of 40 feet from the center line of the proposed 20-foot concrete highway, which was to run along East Texas street, one of the boundaries of the plaintiff’s property. The consideration for the deed is therein recited as the “benefits, uses and advantages accruing” to Scorsune by reason of the location of the bridge connecting Bossier City with Shreveport at this point. The deed was duly recorded in the public records. The 20-foot concrete highway was accordingly constructed, along with gravel shoulders on each side and a drainage ditch, and it has been continuously in use and maintained by the highway since that time.

In 1952 the road was widened and improved by adding some 15J/2 feet on each side of the former 20-foot roadway with a median strip in the center for the division of traffic, as well as sub-surface drainage and an abutting sidewalk. As a result, the plaintiff now has an unimproved tract triangular in shape consisting of a frontage of some 83 feet on East Fourth street, 68 feet on Colquitt street, and 100 feet on East Texas street.

It may thus be seen that there is no merit to the contention that this deed was executed without consideration, and it is also obvious that the deed is one trans-lative of title. The fact that the exact property over which the right-of-way was granted is not described in detail in the deed itself is immaterial since it was easily susceptible of identification and location by extrinsic evidence. See, Snelling v. Adair, 196 La. 624, 199 So. 782. And although the plaintiff is an uneducated Italian immigrant who has little knowledge of the English language, we think the record clearly and unmistakably discloses that when he executed the right-of-way deed in 1931 he knew and understood fully the purpose thereof and the use to which it was to be put. He further knew that the right-of-way was actually used for that purpose, for in 1933, following the completion of the highway, he caused a letter to be addressed to the highway department in which he unqualifiedly acknowledged having executed the right-of-way deed in favor of the state but claimed it had been for a 10-foot strip from Lots 4 and 5, whereas the engineers “made a curve on said Street which takes 25 feet off Lot 5 and 20 feet off of 4.” And despite the fact that in reply the department advised he had dedicated a strip 40 feet wide from the center of the highway where it crossed his property, and referred him to the recorded deed, he took no steps to have the same reformed, and that question is now foreclosed by the prescription of ten years. Article 3544 of the LSA-Civil Code. See, also, Louisiana Oil Refining Corp. v. Gandy, 168 La. 37, 121 So. 183; Haas v. Opelousas Mercantile Co., 197 La. 500, 2 So.2d 3; and Antley v. Smith, 219 La. 525, 53 So.2d 401.

Under the facts of the case also, the plea of prescription liberandi causa of ten years is not available to the plaintiff. In any event it is untenable, for under the express provisions of the Louisiana Constitution of 1921-LSA, “Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law”, Section 16 of Article XIX, and LSA-R.S. 48:226 specifically provides that “Prescription does not run against immovable property or rights thereto legally acquired by the department [of highways] for use as rights of way for public highways.”

For the reasons assigned, the judgment appealed from is annulled and set aside, and the suit is dismissed at the cost of the plaintiff.

      . The record shows that while the plaintiff owned other property in Bossier City, this was the only property owned by him that is located on East Texas street, which was the route of Highway No. 4.


author: HAMITER, Justice.

text:
    230 La. 260
    Beatrice Mason BYRD v. Andrew M. BYRD.
    No. 42239.
    Supreme Court of Louisiana.
    May 7, 1956.
    Jim W. Richardson, Talley, Anthony &; Johnson, Bogalusa, for appellant.

      France W. Watts, Jr., Franklinton, for plaintiff-appellee.
   HAMITER, Justice.

By an instrument dated July 7, 1939 and which recited a cash consideration of $3,000 .Floyd P. Byrd purportedly conveyed to his brother, Andrew M. Byrd, three separate tracts of land in Washington Parish, they comprising respectively (1) 17 acres, (2) 8.65 acres and (3) an undivided 1SÁ2 interest in 137 acres.

Floyd P. Byrd died intestate on September 25, 1951, being survived by his wife, “Mrs. Beatrice Mason Byrd, but by no ascendants or descendants. Thereafter his widow brought this suit against Andrew M. Byrd praying for a judgment annulling .■and cancelling the mentioned act of conveyance.

For a cause of action plaintiff alleged •■that the parcels first and secondly described in the deed belonged to the community that existed between her and decedent, having been purchased with community funds during the marriage, and that the purported ■sale was (1) simulated in that no consideration therefor was given and (2) “an act of ■fraud of Andrew M. Byrd and Floyd P. Byrd to defeat petitioner of her right of •inheritance and ownership as provided for ■under and by virtue of the laws of the State •of Louisiana.”

In his answer the defendant affirmatively averred, among other things as hereafter •shown, that adequate consideration of the value of $3,000 was given for the property transferred.

After a trial of the merits the district •court rendered judgment in favor of plaintiff in accordance with her prayer. The defendant is appealing.

While conceding that the $3,000 cash recited in the deed was not paid by him to the ■decedent, the defendant, a non-resident of this state, alleged and attempted to show that other consideration of such value was actually given. Thus, in his answer, after admitting the allegation of the petition that the decedent and plaintiff retained and had at all times the exclusive control, management and possession of the property in contest, the defendant affirmatively averred as follows:

“That the said Floyd P. Byrd at the time was making plans to operate the farm, that your petitioner [defendant] had some twelve (12) acres of desirable farm land cleared up and in cultivation adjoining, and other lands reforested and in timber, to the total of some seventy-seven (77) acres which Floyd P. Byrd desired to use in his farming operation and it was agreed between the parties that Floyd P. Byrd should have possession of the entire tract, including the property at issue in this case and the adjoining acreage belonging to Andrew M. Byrd.
“It was agreed between the parties that Floyd P. Byrd would look after the property, would administer, and take care of same, pay all taxes,, make all necessary and needed repairs, keep the place up' and take care of same as a prudent administrator, that the reforested area would be looked after and the timber pruned and thinned as required by good forestry methods.
“That the said Floyd P. Byrd was to have the use of all the .property for farming and stock raising purposes for as long as he desired same or so long as he lived and thereby becoming a tenant of Andrew M. Byrd.
“That under said agreement, Floyd P. Byrd was to take care of the forestry products, to manage same, thin timber as required, to sell same and after deducting the cost of cutting and removing the timber, the net proceeds would be divided equally between the parties.
“That the timber was cut at various times and handled in the manner recited in the preceding articles and a full accounting was given from Floyd P. Byrd to Andrew M. Byrd.” (Brackets ours.)

And defendant testified in support of those averments. However, his testimony as to the alleged agreement for the cutting and selling of timber and decedent’s accounting to him therefor was not corroborated. Rather, it was flatly contradicted by plaintiff.

The trial judge, as shown by his written reasons for judgment, concluded that there was no consideration whatever given for the conveyance. With this conclusion we fully agree.

The transaction in effect, as we appreciate the record, was an attempted donation in disguise of what decedent believed to be his separate assets, he at the time retaining a lifetime usufruct of the donated property.

Thus, the testimony of the defendant and two brothers clearly indicates that they and decedent considered the 17 acre tract (No. 1) to be the separate and paraphernal property of the latter, despite the fact that he had acquired it by deed during his marriage to the plaintiff without a declaration in the instrument that it was received for his separate estate or purchased with separate funds. Again, the evidence discloses that the decedent had turned over to a brother $5,000 of his paraphernal funds to be divided equally among all of the brothers and sisters after his death, and that the distribution was made. Too, parcel No. 3 described in the contested deed as an undivided 1%2 interest in 137 acres of land was apparently property which decedent had inherited.

Moreover, as to tract No. 1, the defendant alleged in his answer: “Your respondent further shows that it was the desire and wish of the father, Lon P. Byrd, and of the mother, Rosa Pierce Byrd, that the old place, being the property described as first in Article 1 of plaintiff’s petition, was to become the home of the youngest son, namely, Carver Byrd, that the said Carver Byrd departed this life prior to the transfer of said property and then your defendant, Andrew M. Byrd, being the youngest son was to become the owner of said property; that, however, the said Floyd P. Byrd particularly desired to live on the old place to farm and to stay there, and having no other established home of his own, prevailed upon your defendant, Andrew M. Byrd, to enter into the agreement hereinabove set forth and permitting the transfer of the said property in the first instance from the said Lon P. Byrd to the said Floyd P. Byrd.”

These averments and the proven facts mentioned above make it abundantly clear that decedent considered the items described in the deed to be assets of his separate estate, and that he was attempting to make a donation of them to his brother, the defendant. And the first above quoted allegations of the answer, along with the testimony of the defendant, plaintiff and others, show conclusively that the decedent entered into with defendant (and there was actually executed) an agreement whereby he was to have and maintain during his lifetime absolute possession, control and enjoyment of the property — to retain and exercise a lifetime usufruct, in other words. See, LSA-Civil Code Article 533.

The defendant does not presently deny that tracts Nos. 1 and 2 described in the attacked instrument were assets of the community that existed between plaintiff and decedent. In addition to the defense above discussed he now challenges the right of the widow to maintain this action. His counsel point out that she is not authorized by LSA-Civil Code Article 2239 to so proceed, because she is neither a forced heir, creditor nor bona fide purchaser as therein prescribed. Then, to quote from their brief, they argue:

“It is therefore submitted that the wife’s action, if any, is under Article 2404 of the Louisiana Revised Civil Code, which permits a wife to set aside a conveyance of community property if the husband has conveyed it in defraud [fraud] of her rights.
* * * * * *
“In the instant case there was not even the slightest attempt made to prove any .fraud on the part of either Floyd P. Byrd or Andrew M. Byrd, and without satisfactory proof of fraud the transaction cannot be set aside. * * * ” (Brackets ours.)

In view of our conclusion that the transaction in question was a disguised donation with retention of a lifetime usu-fruct, we find it unnecessary to determine whether actual fraud on the part of the donor or donee is satisfactorily shown by the evidence in the record. The instrument assailed is absolutely void by reason of LSA-Civil Code Article 1533 which states: “The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but can not reserve it for himself.” This provision was dictated by sound considerations of public policy. Dawson v. Holbert, 4 La.Ann. 36.

This court in Creech v. Errington, 207 La. 615, 21 So.2d 761, 764, after quoting LSA-Civil Code Article 1533, said:

.“Since we have reached the conclusion that the instrument in question, being in actual fact a disguised donation, reserved unto donor a usufruct over the immovable property donated therein, which reservation is prohibited by the express provisions of the above quoted article of the Code, then what is the effect of such reservation on the entire act?
“The jurisprudence of this state is well settled to the effect that such reservation of usufruct to a donor of immovable property renders the entire instrument radically null and of no force and effect. [Numerous cases are here cited.]
“Therefore, under the well settled jurisprudence, the instrument attacked in this case is radically null and of no force and effect.” See also Succession of Yeates, 213 La. 541, 35 So.2d 210 and Almond v. Adams, 221 La. 234, 59 So.2d 132.

And it is further established in our jurisprudence that all interested persons, including collateral heirs, are entitled to invoke a nullity of that kind and to have the prohibited donation set aside. Lazare v. Jacques, 15 La.Ann. 599; Succession of Dupre, 218 La. 907, 915, 51 So.2d 317 and cases therein cited (on rehearing). Unquestionably this plaintiff has the right to so proceed herein, for she is the widow in community of decedent, entitled as such to one-half of the community assets, and also is his sole heir at law under LSA-Civil Code Article 915.

Finally defendant contends that plaintiff’s action to have the act of conveyance set aside is barred by the prescription of ten years under LSA-Civil Code Article 2221.

In Whitney National Bank of New Orleans v. Schwob, 203 La. 175, 13 So.2d 782, 783, we said: “This court has differentiated between absolute nullities in derogation of public order and good morals and those which are established in the interest of individuals. The latter nullities are susceptible of ratification, either expressly or impliedly, and may be prescribed against, while the former are never susceptible of ratification and can never be prescribed against. * * * ”

As before pointed out the attempted donation under consideration herein was violative of a law enacted in the interest of public order. Hence, plaintiff’s right to attack it was imprescriptable.

In support of the plea of prescription defense counsel have cited Strong v. Haynes, 152 La. 695, 94 So. 322, Succession of Nelson, 224 La. 731, 70 So.2d 665 and Brady v. Brady, La.App., 55 So.2d 287. These cases are distinguishable in that none involved a radically null conveyance such as the one presently considered.

For the reasons assigned the judgment appealed from is affirmed.

McCALEB, J., concurs in the decree.


author: MOISE, Justice.

text:
    230 La. 271
    Christopher LANDRY v. Hiram FUSELIER and Globe Indemnity Company.
    No. 42385.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Carmouche & Martin, Lake Charles, for plaintiff.
    Moss & Graham, Lake Charles, for defendant-respondent.
   MOISE, Justice.

Under Article VII, Sec. 11, Louisiana! Constitution of 1921, LSA, a writ was. granted to review a judgment of the Court of Appeal for the First Circuit, 78 So.2d! 442, which affirmed a judgment of the trial court denying plaintiff workmen’s compensation insurance.

On April 14, 1953, Christopher Landry,, a carpenter, was severely injured while assisting in the demolition of a building at Elton, Louisiana, owned by his employer,. Hiram Fuselier, his son-in-law. The building rafters gave way and the building collapsed, pinning plaintiff under the lumber. As a result, he is permanently and totally-disabled.

Hiram Fuselier operates a service station/ and a grocery store, and he owns a rent house and a one-half interest in a saloon. He, likewise, owned the building which collapsed. Fie had leased it to the Army for use as a Trade School, at a rental of $100 per month, and when the Army discontinued the use of the building he decided to demolish it. To assist him in the demolition he employed plaintiff, who had previously worked on and off for him as a carpenter, and three other workmen. Part of the lumber was used to build a storeroom for his saloon and part to construct a new roof over his gasoline service station. He intended to use the remainder of the lumber to build a home, but this he never did. At the time of the trial he was still living in a rented house.

At the time of the accident Hiram Fuse-lier carried workmen’s compensation insurance with the defendant, Globe Indemnity Company. In previous years the coverage had mentioned carpentry, and, therefore, he was under the impression that his policy covered his repair and carpenter work as well as his service station. In fact, a payroll audit statement, rendered after the accident, shows that the Globe Indemnity Company accepted a premium for wrecking of buildings. However, the policy classified his occupation as follows:

''Gasoline or Oil Supply .Stations— retail — including Chauffeurs and their Helpers — N.P.D. with 'Automobile Garages, Sales or Service Agencies’ or 8392 ‘Automobile Storage Garages.’ ”

The policy also contained the two following clauses :

“VI. This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall inchtde all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described m said Declarations or else-zvhere in connection with, or in relation to, such work places.” (Italics ours.)
“L. No condition or provision pf this Policy shall be waived or altered except by endorsement hereon or attached hereto signed by the President, a Vice-President, or a Secretary of the Company; nor shall notice to any agent, nor shall knowledge possessed by any agent, or by any other person, be held to effect a waiver or change in any part of this contract. The personal pronoun herein used to refer to this Employer or to an injured employee or dependents, shall apply regardless of number or gender.”

This policy was cancelled as of May 25, 1953.

Plaintiff was paid workmen’s compensation until August 11, 1953, together with some of his medical and hospital bills. The insurer made full settlement with Richard Thomas, another workman injured in the same accident.

When the insurer refused to make any additional payments to plaintiff, he filed suit for total and permanent disability, penalties and attorney’s fees against his employer and the Globe Indemnity Company. Proceedings against the employer were subsequently withdrawn.

Plaintiff contended that at the time of the accident he was doing carpentry work for his employer in his employer’s trade, business or occupation in demolishing a building, and that he was entitled to recover workmen’s compensation because the demolition was in connection with his employer’s regular business of a filling station. He further argued that the very issuance of the policy entitled him to compensation.

The trial court, having first rendered judgment for plaintiff for total and permanent disability, reversed itself on rehearing and dismissed the suit. The Court of Appeal, by a divided court, affirmed the judgment of dismissal.

We have reviewed the record, and we believe that the dissenting opinion of judge Tate correctly states the facts and tlie law applicable to this case. The majority opinion has placed undue emphasis on a self-serving declaration made by the employer to his own insurer, which he and his wife fully explained when placed on the witness stand under oath as witnesses for plaintiff. In his dissenting opinion, which we adopt as the opinion of this Court, Judge Tate states [78 So.2d 449]:

“The majority holds that the plaintiff did not bear his burden of proof that at the time of the accident some of the lumber from the demolition job was intended for repair of his employer’s filling station business, admittedly hazardous under the compensation act. If such was the case, it is agreed that under Speed v. Page, 222 La. 529, 62 So. 2d 824, plaintiff would recover.
“In the present instance, plaintiff’s employer, Hiram Fuselier, and his employer’s wife, Mrs. Fuselier (the son-in-law and daughter of plaintiff, admittedly) testified that from the first before the accident some of the lumber was intended for repairs of the employer’s filling station, although the testimony of Fuselier himself in this respect is somewhat ambiguous.
******
“However, this testimony is not contradicted, and I feel that the plaintiff has borne his burden of proof.
“This proof is disputed only by inference and innuendo.
“The fact that Fuselier’s written statement (given to his adjuster at the time compensation was being paid to plaintiff four months after the accident) did not mention, either to affirm or to deny, that such lumber was intended to be used in repairs of the filling station is to me singularly unpersuasive as indicating a contrary intention, especially since Fuselier and his wife both testified under oath and without contradiction that the statement was taken down by defendant’s adjuster based on replies by the insured to the adjuster’s questions and that they would have told the adjuster that some of the lumber was used and intended for business repairs if he had asked. Defendant further failed to produce the adjuster to subject him to cross-examination. As Mrs. Fuselier testified regarding the use of such lumber for business repairs, ‘he did not ask me, but if he had looked he could have seen it was being used for repairs.’
“Because the employer did not utilize such materials for filling station repairs for eight months and after suit was filed, is not in my opinion determinative of his intention at the time of accident; any more than does his failure to date to use any of such materials for construction of a personal residence (including during the four months when compensation was paid and there was no suspicion that liability would be denied by his insurer) prove a contrary intention at the time of the accident. It may well be that the employer’s repair and construction activities occur when his other businesses are slack, or that he delayed the repairs or construction work for a multitude of other reasons.
“If it were the employer’s intention at the time of the accident to utilize at least some of the materials from the demolished building for filling station repairs, it is difficult to say what other testimony plaintiff could have produced beyond the testimony of the employer and his wife. The fact that plaintiff is the father-in-law of the employer did not necessarily impart to him knowledge of his son-in-law’s intentions as to every single facet of the latter’s businesses.
“The plaintiff does not have the burden of proving beyond a reasonable doubt, but only by a preponderance of the evidence that his employer intended such lumber for filling station use. For us to ignore this sworn testimony of those people in the world most likely to know their own intention, is to taint sworn testimony with suspicion of perjury on mere speculation and inference.
“I further feel that determination whether the employment of this injured workman was subject to our compensation act need not in this case depend upon the employer’s subjective intention at the time of the accident.
“It is proved without denial that for about three years, as shown also by audits made by the insurer itself for a portion of that time, Fuselier had paid insurance premiums to defendant, Globe Indemnity Company, based upon his being engaged both in the filling station business and in carpentry or the wrecking of buildings — in short, in the construction business. There is uncon-tradicted testimony that Fuselier had engaged construction employees, including plaintiff, on various other occasions to make repairs to all the business properties presently or formerly owned by him and to construct an addition to one of the rental buildings owned by him. In fact, simultaneously with demolition of the trade school a new storeroom addition was built by the same employees with some of the materials for another business property (a saloon) owned by the employer.
“Thus the construction activities of Fuselier involved in repairs and construction of his business premises were a regular part of his economic activities. These construction activities, hazardous per se under LSA-R.S. 23:1035 when engaged in as a business, were no less a part of the employer’s trade, business, or occupation because used as a means of making money by the regular and recurrent repairs and additions to his own business properties, than if used as a means of making money by repairs for a price to the property of another.
“It seems to me that the words of Chief Justice Fournet in another of his forceful opinions as reported at Speed v. Page, 222 La. 529, 62 So.2d 824, at page 827, with' regard to the jurisprudence (specifically referring to the Shipp and Caldwell cases cited by the majority in support of their conclusion), concerning an occasional worker employed in repairs, construction or demolition activities incident to the employer’s regular trade, business or occupation, are applicable here:
“ ‘It would appear that much of this confusion and lack of harmony stems from pronouncements of this Court, made without citations of authority, without due consideration of the object and purpose of the Act, and in total disregard of the admonition of the lawmakers that its provisions should be liberally construed in favor of the employee.’ ”

Plaintiff is entitled to recover for total and permanent disability — that is, the , , . , sum of $30 per week for a period not exceeding 400 weeks, subject to credit for compensation previously paid for a period of 17 weeks ending August 11, 1953. He is also entitled to recover his medical expenses up to the statutory limit. According to the record, defendant insurer has paid some of these expenses, but there is still due and unpaid the sum of $333. The fee of Dr. C. V. Hatchette, as expert witness for plaintiff, should be fixed at $50 and taxed as costs, Since the defendant insurer has not acted in an arbitrary and capricious manner, we do not think that this is a case where the penalties should be imposed.

For the reasons assigned, the judgment of the Court of Appeal for the First Circuit and .the judgment of the Thirty-First Judicial District Court for the Parish of Jefferson Davis are reversed and set aside; and, it is now ordered that there be judgment in favor of plaintiff, Christopher Landry, and against the defendant insurer, Globe Indemnity Company, in the sum of $30 per week, during plaintiff’s period of disability, not exceeding 400 weeks (beginning April 14, 1953), subject to credit for compensation paid for a period of 17 weeks up to August 11, 1953, with interest on past due weekly payments of $30 from the date each was due, and in the further sum of $333 for medical expenses, with legal interest from date of judicial demand; and, it is further ordered that the expert fee of Dr. C. V. ITatchette be fixed at $50 and taxed as costs. Defendant, Globe Indemnity Company, is to pay all costs.


text:
    230 La. 282
    Robert E. SMITH v. CITY OF NEW ORLEANS.
    No. 42593.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      Henry B. Curtis, City Atty-., Charles E. Cabi'bi, Asst. City Atty., New Orleans, for defendant-appellant.
    Clem H. Sehrt, Edward J. Boyle, Dudley A. Philips, Jr., New Orleans, for plaintiff-appellee.
   MOISE, Justice.

Defendant appeals from a judgment awarding plaintiff $56,129 for damages to a square of ground in the Third District of New Orleans, bounded by Paris Avenue, Gentilly Boulevard, Bruxelles and Treasure Streets, and it prays that this award on appeal be decreased to the sum of $23,700.

Plaintiff contends that the award is too low and should be in the amount of $100,000.

The record discloses that on January 21, 1952, the City of New Orleans began the construction of an underpass on Gentilly Boulevard at the intersection of Florida Avenue, during the course of which the grade level of Gentilly Boulevard in front of plaintiff’s property was changed and lowered. A concrete wall, approximately one foot thick, was placed before plaintiff’s property on the Gentilly Boulevard frontage, beginning about 80 feet from the Gentilly Boulevard and Paris Avenue intersection and increasing to a height in excess of 4 feet at the intersection of Gen-tilly Boulevard and Bruxelles Street. A similar wall was built on the Bruxelles Street frontage, reaching a height of 4 feet at the intersection of Bruxelles Street and Gentilly Boulevard.

The record discloses that this property was zoned for commercial purposes and that there is a small amount of property, other than the one herein involved, that could be used for commercial purposes in that section. The preponderance of evidence shows that plaintiff’s property could be used as a shopping center. It is admitted, as a fact, that the walls and the changes in the grade and lowering of the levels on these two streets have completely destroyed the ingress and egress along practically the entire Gentilly Boulevard and Bruxelles Street frontages of plaintiff’s property and has caused it to be set apart and isolated from those two streets.

The main factor which gave this property its value was the frontage on Gentilly Boulevard, which is the principal highway used by the travelling public from the east for ingress and egress to the City of New Orleans; the property was easily accessible to the public, and the transportation facilities in the area are excellent. The only ingress and egress to the property now is on a secondary street.

On the other hand, the City of New Orleans argues that this square of ground was purchased on September 14, 1945, for $35,-000 in cash. It claims that no part of this property was taken by the city in the construction of the underpass, and it submits that the measure of damages is the difference between the value of the property before the construction of the underpass and its value as it now exists. Furthermore, the city contends that the trial judge was in error in his computation when he made the award.

If the Court knows what everybody knows, then it should have knowledge that the property suffered a great dimunition in value because of this obstruction placed thereon by the city.

As to the valuation of the property before and after the construction of the underpass, plaintiff used three expert witnesses — Robert E. Smith, the plaintiff; Mr. Eugene A. Aschaffenburg; and Mr. J. Burrows Johnson — all capable real estate men of high standing, and well and favorably known in this community. They testified that the best use, before the ingress and egress was destroyed on Gentilly Boulevard and Brux-elles Street, was for a retail shopping center. Mr. Aschaffenburg testified that the fair value of the property before construction of the underpass was $240,000, and $140,000 after construction of • the underpass. He took into consideration comparative sales in the vicinity and the loss of ingress and egress on Gentilly Boulevard. Mr. Johnson estimated the value of the property at $3.70 per square foot before construction of the underpass and $1.50 per square foot after construction was completed. In his opinion, the estimated depreciated value was $140,000.

The defendant’s expert witnesses are men of equal reliability, and are also well and favorably known in the community. Mr. F. Poche Waguespaclc testified that the highest price-any buyer would have paid for the property before construction of the underpass was $2.25 per square foot, with the buildings located thereon, and he stated a valuation of $145,800. Mr. Max J. Derbes testified that the property had a value of $2.23 per square foot before construction of the underpass, and he gave the property a valuation of $144,775.

To a trial judge the call of duty is always urgent and insistent. It is the same call that now comes to us. The trial judge not only wanted to consider all 6f the facts of record, but he also wanted to inspect the physical facts and conditions prevailing in this particular area. He did not want to be bound by isolated fragments of facts, considered separate and apart from all of the circumstances taken as a whole. Fie visited the property and made an inspection thereof, and in arriving at his conclusion our Learned Brother below made the following pronouncement:

“I have given consideration to all of the comparable sales offered in evidence and to all of the opinions of the experts. I have also examined the property itself, I have concluded that this, square of ground taken as á whole had) a value of $2.50 per square foot before the property was damaged by the City by the building of the retaining walls, which deny ingress and egress to the property from Gentilly Boulevard! along all of the frontage, except for a distance of 80 feet, and along all of the frontage on Bruxelles Street except for a distance of 80 feet.
“I have further come to the conclusion that that portion of the property which is not behind the retaining walls has not been damaged at all. This applies to the portion of ground measuring 80 feet front on Gentilly Boulevard, 106.95 feet front on Paris Avenue, 69 feet front on Treasure Street, and 148 feet on a line parallel to Paris Avenue, the area of which is 8,795 square feet as shown on Exhibit ‘City A.’ Since the remainder of the property is inaccessible to Gentilly Boulevard and inaccessible to Bruxelles Street, except for a short distance from the corner of Treasure Street, that portion of the property has been substantially depreciated in value and in my opinion must be given the value of property fronting on Treasure Street, which, from the evidence, I conclude is $1.50 per square foot. The area of this portion of the property as shown by Exhibit ‘City A’ is 56,129 square feet. The depreciation calculated at $1.00 per square foot amounts to $56,129.00, for which amount plaintiff is entitled to judgment.”

We cannot say that the award, as made, is manifestly erroneous.

Judgment affirmed. All costs to be paid by the defendant.


text:
    230 La. 289
    CITY OF NEW ORLEANS v. Dr. Joseph A. LA NASA et al.
    No. 42328.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      Fishman, Reuter, Rosenson & D’Aquin, New Orleans, for defendants-appellants.
    Henry B. Curtis, City Atty., John F. Connolly, Asst. City Atty., Luther E. Hall, Jr., Asst. City Atty., New Orleans, for plaintiff-appellee.
   McCALEB, Justice.

The City of New Orleans is seeking to enjoin Dr. and Mrs. Joseph A. LaNasa and their family corporation, Emblem, Inc., from maintaining and operating a commercial warehouse on certain lots owned by Dr. and Mrs. LaNasa fronting on Gen-tilly Blvd. in the 2200 block thereof and also to order them to remove an advertising sign from said property, on the grounds that the maintenance and operation of the warehouse and the sign are in violation of the zoning and underpass ordinances of the city.

The defendants, while admitting that they are violating the zoning ordinance of the City of New Orleans (No. 18,565, C.C.S. adopted on July 3, 1953), assert that the law is unconstitutional insofar as it classifies their property as residential and further contend that it is unreasonable legislation as part of the property is zoned as residential and the remainder as industrial.

Following a hearing below, judgment was rendered for the city, and defendants were permanently enjoined from using the warehouse and ordered to remove the sign. They have appealed suspensively to this Court. A motion to dismiss the appeal for lack of jurisdiction was denied, see 227 La. 953, 81 So.2d 7, and the case has been argued and submitted for our determination on the merits.

The record reveals the following uncontested facts. The La Nasas, through Emblem, Inc., have conducted a furniture business for a number of years at the corner of Gentilly Blvd. and Republic Street, the store being located immediately across Republic Street from the property involved in this suit. In the fall of 1949, the City of New Orleans, requiring a portion of the property occupied by the furniture company for use in connection with the Florida-Gen-tilly Underpass, purchased the necessary land from Dr. and Mrs. La Nasa for $34,000 and, in addition, facilitated an arrangement whereby the La Nasas were permitted to construct a temporary warehouse on the property involved in this litigation, which was then owned by a Mr. Herman Does-cher. The zoning classification of the property at that time (and as far back as 1929) was A-Residential on the front portion and E-Commercial on the rear 20 feet. To carry out the arrangement, the La Nasas and Mr. Doescher applied to the City Zoning Board of Appeal and Adjustment for permission to erect and use a temporary warehouse on Doescher’s premises. This permission was granted, to expire not later than six months after the completion of the Florida-Gentilly Underpass, and the warehouse was built on the rear portion of the Doescher premises, 31 feet of it being located on the part which was zoned as A-Residential and 15 feet on the part zoned as E-Commercial, under the ordinance then in effect.

During this period, the city was contemplating the enactment of a new comprehensive zoning law and had employed experts in this field to make surveys and recommendations. One of these was the firm of Harland Bartholomew and Associates, who rendered a report to the city in 1949, recommending, inter alia, that the property involved herein be classified as commercial.

In August of 1952, Dr. and Mrs. La Nasa purchased the property in question from Mr. Doescher, largely on the basis of the recommendation made in the Bartholomew Zoning Report to the city.

In June of 1953, the Florida-Gentilly Underpass was completed and the temporary permit granted the La Nasas to operate the warehouse expired six months later, or in December of 1953. Meanwhile, in July of 1953, the Commission Council of New Orleans, after extensive study, adopted the new Comprehensive Zoning Ordinance No. 18,565, C.C.S., which classified the property involved as B-Residential except the rear 20 feet, which is classified as J-Industrial (according to district boundaries as shown on Lot-Line Zoning District Map 20'); that is to say, virtually the same classification it previously had. In July of 1954, the La Nasas appeared before the Commission ■Council requesting a change in the zoning of the property from residential to commercial but their application was denied. Since then, they have steadfastly refused to comply with the ordinance. Wherefore this suit.

Imprimis, we dismiss as untenable defendants’ various and sundry claims of the unconstitutionality of the zoning law, as applied to them, save one. It is well settled that zoning legislation is within the police power of municipal corporations and does not violate any constitutional guarantee unless it is found to be palpably unreasonable and arbitrary. State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613, certiorari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612 and Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Hence, we need only to consider defendants’ contention that the zoning of the property was clearly arbitrary and unreasonable, having no substantial relation to the health, safety, morals or general welfare of the community.

On this question, it is plain that defendants have not sustained the burden of showing that the zoning of their property as B-Residential was made without due consideration of the character of the district. Indeed, it is apparent from the record that their charges of unreasonableness are, for the most part, predicated on the theory that the city should have adopted all the recommendations of the Bartholomew report which, of course, it was not obliged to do. There is no evidence showing that the rejection of the recommendation was arbitrary and capricious. On the contrary, the uncontroverted proof exhibits that the ordinance was adopted only after prodigious study and comprehensive planning and that the need for commercial and residential property within each zoning area was carefully considered. In the particular geographic area in question, the Planning Commission determined that only 49% of the area classified as either commercial or industrial was being used as such, leaving 51% of the allocated area still available. In the light of this information, the Commission Council was amply justified in retaining the same or similar classification of the subject property which had theretofore been designated under the ordinance in effect at the time of defendants’ acquisition.

Defendants rely heavily on our decision in State ex rel. Loraine, Inc., v. Adjustment Board of City of Baton Rouge, 220 La, 708, 57 So.2d 409, where a zoning ordinance classifying as residential a previously un-zoned area located between two residential districts was held invalid because the classification bore no substantial relationship to the health, safety, convenience or public welfare of the inhabitants in the part of the city affected. But that case bears no factual resemblance to the one at bar. There, the area zoned residential was unzoned before its acquisition and the landowner was led to believe that the property would be classified commercial, both by letter from the planning engineer of the City Planning Commission and by a zoning map prepared by the Commission. Here, defendants purchased the property knowing that it was zoned for residential uses and they were given no assurance by anyone connected with the city that the classification would be changed. Indeed, they were well aware at the time they applied for and were given a temporary permit to construct the warehouse on the property that, unless the recommendation of Bartholomew was adopted, they could not permanently maintain and use the land for business purposes.

Nor is there any merit in defendants’ other complaint that the ordinance is unreasonable because the rear 20 feet of their property is classified as J-Industrial. In the first place, we think it plain that, although the zoning map places the division line between B-Residential and J-Industrial in this area 20 feet from the rear of plaintiff’s property line, the legal division line is defendants’ rear property line as shown in their title. Section 2 of Article IV of Ordinance 18,565, C.C.S., declares that:

“Where the district boundaries as shown on the Lot-Line Zoning District Maps approximately coincide with lot lines, the lot lines shall be construed to be the district boundary line unless otherwise indicated.”

This provision was obviously inserted to preclude the possibility of any one lot having more than one classification and, though in certain contexts a separation of 20 feet might not be tantamount to approximate coincidence, for the purposes of this ordinance and, in view of the scale used in the zoning map, the boundary line can be said to coincide with the rear of defendants’ lots involved in this litigation and, therefore, they are wholly classified as B-Residential.

But, even if this were not so, defendants would have no cause for complaint that .the rear 20 feet of their property has been zoned J-Industrial instead of B-Residential. The ordinance indicates the clear intention of the Commission Council to zone the front lots located in the 2200 block of Gentilly Blvd. as B-Residential. Hence, defendants can hardly be heard to say that the zoning is unreasonable because the rear 20 feet of their lots is zoned for a less restrictive (and more profitable) use.

As for the advertising sign displayed by defendants on the front of their property, which they concede to have an area of at least 24 square feet, it suffices to quote from Article VIII, Section 2 of Ordinance 18,-565, C.C.S; (to be read in connection with Article IX, Section 2, Paragraph 1 of said Ordinance) :

“A building or land shall be used only for the following purposes:
* * * * * *
“10. * * * and signs not exceeding twelve (12) square feet in area, pertaining to the rental, lease, or sale of a building, or land; provided, however, that not more than one sign of the above character shall be permitted on any lot.”

The judgment is affirmed.

FOURNET, C. J., absent.

      . In square 2113 of the Third District of New Orleans, bounded by Gentilly Blvd., Benefit, Republic, Havana and Humanity Streets.

      . Ordinance No. 18,662, O.O.S., the so-called. “Underpass Law”, was repealed on March 11, 1956 and, therefore, is no longer pertinent to the case.


text:
    CITY OF NEW ORLEANS v. Michael LANGENSTEIN, George Langenstein, Richard Langenstein, George and Richard Langenstein, Doing Business as Michael Langenstein & Sons or Langenstein Brothers.
    No. 20612.
    Court of Appeal of Louisiana. Orleans.
    June 25, 1956.

      Harry R. Cabral, Plarry R. Cabral, Jr., and Lewis R. Graham, New Orleans, for defendants and appellants.
    Henry B. Curtis, City Atty., and Luther E. Hall, Jr., Asst. City Atty., New Orleans, for plaintiff and appellee.
   PER CURIAM.

Defendants appealed suspensively and de-volutively from the issuance of a preliminary injunction against them to -the Supreme Court of Louisiana, which court transferred the appeal to us for the reason that it had no jurisdiction. See 227 La. 770, 80 So.2d 402. The matter was argued before us on May 9, 1956, and due to- the fact that one judge was absent, we have ordered the matter set down for reargument. The City of New Orleans now moves to dismiss the suspensive appeal on the ground that there never was any notice given to it of the appellants’ intention to apply for the sus-pensive appeal, and there was no hearing had upon the application for same as provided by LSA-R.S. 13:4070.

The motion cannot prevail. This court is not concerned with whether there was such notice or a hearing upon the application for the appeal. These were merely formalities in connection with the taking of the appeal, and whereas the motion to dismiss was not filed within three days after the appeal was lodged in this court, we cannot consider it. Code Prac. art. 886.

Motion denied.


author: LOUIS H. YARRUT, Judge ad hoc.

text:
    Mrs. Vernon C. MALTER and Isadore Masson v. Edward BLANKE.
    No. 20726.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.

      Dodd, Hirsch & Barker, Harold J. Lamy, New Orleans, for plaintiffs-appellants.
    Harry R. Cabral, Harry R. Cabral, Jr., and King K. Nungesser, Jr., New Orleans, for defendant-appellee.
   LOUIS H. YARRUT, Judge ad hoc.

From a judgment dismissing both main and reconventional demands, plaintiffs appeal and defendant-reconvenor answers the appeal. Plaintiffs (brother and sister) seek to recover for personal injuries sustained, by the brother (Masson), and for damage to the automobile of the sister (Mrs. Mal-ter), which the latter had loaned to, and was being driven at the time of the accident, by Masson. Masson had with him, as his guest, his sister’s eleven year old son, on their way to Pontchartrain Beach. The boy suffered no injury.

The accident occurred at 8:00 P.M. in April, 1955, at the intersection of Canal and So. Bernadotte Streets in New Orleans.

Masson was driving north on So. Berna-dotte Street, and defendant east, or towards the River on Canal. Canal is a two-way main thoroughfare, running east and west, divided by a wide neutral ground traversed by double street-car tracks. So. Bernadotte is a one-way street, runs north and south,, and is controlled by a “Stop” sign as it enters Canal. The night was clear and dry and thé intersection well-lighted.

Each roadway of Canal is 30 feet wide, ¡ and So. Bernadotte is 30 feet wide. .

The automobiles collided in the intersection, a few feet short of the neutral ground.

Other than the respective drivers of the colliding cars, the only witness to appear was a member of the local Bar (Fox) who appeared for plaintiffs.

Masson testified that he stopped at the “Stop” sign and saw cars approaching from his left at the next corner, 300 feet away. He then proceeded into the intersection at six miles per hour and when he was two or three feet from the neutral ground, waS" struck by defendant’s car. Except for seeing cars 300 feet away when he entered the intersection, he did not see defendant’s car until it hit him.

Defendant testified that he was in the neutral ground lane, travelling about 25 miles per hour with other cars to his right travelling along with him; when 15 feet from the intersection he saw Masson’s car crossing in the middle. Realizing a crash was imminent, he swerved a few feet to his right to avoid it, but failed, resulting in his front striking Masson’s left rear bumpr er; that Masson stopped short of the neutral ground, apparently for a passing street car, which Masson denied, contending that once he entered the intersection, he continued on.

The disinterested witness (Fox) testified he was having his car serviced at an oil station at the intersection, just SO feet away from the collision; that he was acquainted with- Masson, a- night elevator tender at the building where Fox has his law office; that he saw defendant’s car for the first time when it was SO feet from So. Berna-dotte, travelling in excess of 35 miles per hour, when ' Masson’s car was only three or four feet from the neutral ground; that Masson had stopped at Canal before entering the intersection, and continued on without stopping when struck; that defendant did not slacken speed; that he heard no brakes grinding and no horn blown; that his name does not appear on the police report as a witness to the accident because he left before the police arrived, but spoke to Masson at the scene; that after the accident, Masson’s car came to rest on Canal, six feet from the neutral ground and 15 feet from So. Bernadotte, while defendant’s car came to rest on Canal 150 feet from point of impact.

Taking Masson’s and Fox’ versions at face value, we must conclude that, as Mas-son stopped at the intersection and then proceeded to cross at five to six miles per hour without stopping, and Masson’s car was four feet, more or less, from the neutral ground, Masson’s car travelled about 20 feet at five to six miles, while defendant’s car was travelling 300 feet, or 15 times further. For the two cars to meet, defendant would have had to travel 75 miles per hour, yet Fox said he was travelling about 35 miles.

If Masson is correct and defendant was travelling in excess of 75 miles per hour, the accident would not have happened, because defendant would have cleared the intersection, or both cars would have been completely demolished. If, as Fox testified, defendant was travelling only 35 miles per hour, more or less, then Masson would have cleared the intersection without mishap.

As we see it from the evidence, the accident happened in the following manner: When Masson saw the cars at the next corner as he stopped at the “Stop” sign, he waited for them to pass. He could only see the cars on defendant’s right because defendant’s car, approaching in the neutral ground lane, was screened from Masson’s view. As the cars on defendant’s right passed the intersection, Masson proceeded to cross, when defendant’s car, 50 feet, more or less, away came into his view. Realizing an accident was imminent and, in an effort to avoid it, defendant swerved a few feet to his right, but to no avail.

Defendant, under these circumstances, cannot be held to have been negligent in any manner. At 35 miles per hour, his speed did not contribute to the accident, and the emergency he sought to avoid was not of his making. Seeing the cars to his right proceeding across the intersection without mishap, he had a perfect right to assume that defendant or any other motorist would wait before attempting to cross until the intersection was clear. Had Masson waited as he should have, he would have seen defendant’s car, once cleared from the screening by the other cars, approaching on the neutral ground lane 50 feet or more away, and too close for him to even attempt a crossing.

Masson’s failure to wait under these circumstances before entering the intersection was gross negligence. Huerstel v. L. Man-gano & Co., La.App., 39 So.2d 460; Pan-coast v. Cooperative Cab Co., La.App., 37 So.2d 452; Gayle v. J. Ray McDermott & Co., La.App., 34 So.2d 631.

Since defendant was not guilty of negligence in any degree, neither plaintiff can recover from him.

In reconvention, defendant seeks recovery for the amount he paid for the repair of the automobile he was driving. While he alleged the automobile was his, at the trial, as the result of a subpoena duces tecum, he admitted the car was owned by one Rezzuto, from whom he borrowed it. Since defendant had no legal liability to pay for the repairs, and did not obtain an assignment or conventional subrogation either from the repairman or Rezutto, he has no right of action to recover for such repairs. He is neither legal nor conventional subrogee. LSA-C.C. arts. 2159 through 2162. See Commentary in 25 T.L.R. 358.

While both counsel stipulated in open Court the correctness of the amount of the respective repair bills there was no admission that each had the right to recover therefor. This is best illustrated by plaintiff’s counsel, both in brief and in oral argument, strenuously contending that Mrs. Malter cannot recover for the repairs to her automobile, since it belonged to the dissolved, though unliquidated, community existing between her and her late husband.

Accordingly, both main and reconven-tional demands were properly rejected by the lower court, and therefore the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent.