text:
    TRICHEL CONTRACTING COMPANY, Plaintiff-Appellee, v. LITTLE CREEK OIL COMPANY OF LOUISIANA, Inc., Defendant-Appellant.
    No. 8410.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      M. T. Monsour, Irving M. Greenberg, Shreveport, for appellant.
    A. D. Flowers, Jena, for appellee.
   AYRES, Judge.

Plaintiff instituted this action against the defendant to recover the sum of $1,613.98, with 5 percent per annum interest thereon from December 1, 1953, until paid, together with 10 percent additional on both principal and interest as attorney’s fees, and for recognition of its lien and privilege covering an oil, gas and mineral lease of the defendant on the NW54 of NE14, Section 26, Township 9 North, Range 1 East, together with the oil well located thereon, as well as upon all equipment and supplies located on said leased premises, under a contract and agreement for work done and materials furnished on said oil well owned by defendant and located in LaSalle Parish, Louisiana.

From a judgment dated June 7, 1954, in plaintiff’s favor as prayed for and maintaining and recognizing plaintiff’s provisional seizure upon all the property on which plaintiff claimed a lien and privilege, and ordering said property seized and sold, and directing that plaintiff be paid from the proceeds thereof the aforesaid judgment by preference and priority, defendant, by petition and order of June 3, 1955, appealed devolutively to this court.

The principal grounds urged for a reversal of the judgment are that the trial court erred in these instances, namely: (1) in holding that the contract constituting the basis of this action was properly and legally signed by C. E. Simmons on behalf and with the authority of the defendant corporation, and (2) in finding that plaintiff had established by a preponderance of the evidence the correctness of the account sued upon.

A resolution of the questions presented requires a brief discussion of the facts. The plaintiff entered into a written contract with the defendant September 18, 1953, to drill an oil well to a maximum depth of 3,200 feet on the aforesaid leased property of the defendant and at a location designated by defendant. In accordance with this contract the contractor was obligated to furnish, among other things, its drilling rig and the labor, fuel and water necessary for the completion of the contract at its expense. The defendant as the owner of the leased premises and of the contemplated well was to furnish at its expense all casing, tubing and well completion equipment. The consideration to be paid plaintiff for the drilling and completion of this well was $2.50 per lineal foot if oil was found below 1,700 feet and $2.25 per lineal foot if found above that depth. The well was drilled to a depth of 1,600 feet, and on September 23, 1953, casing was set. By the terms of the contract, waiting periods of time of 24 hours for the setting of casing and 48 hours for the oil string were provided for at the contractor’s expense. Defendant, however, was obligated to pay for any additional waiting time at the rate of $540 per 24-hour day while using drill stem and $500 per day while the drill stem was not in use. Moreover, the testimony shows that the pay roll expenses for the drilling crew alone approximated $300 per day. After allowing the 48 hours to permit the concrete to set or harden, plaintiff was ready to proceed with the completion of the well. At that time, however, defendant experienced financial difficulties and was unable to furnish the tubing, equipment, supplies and tools necessary for the completion of the well as it was obligated to do under the terms of the contract. A portion of the supplies had been purchased from Lowe Bros., who had not been paid therefor and who instructed that the supplies furnished by them not be used until payment therefor had been made. The completion of the well was, therefore, delayed because of defendant’s inability to supply the necessary equipment.

It was apparent to both plaintiff and defendant and defendant’s vice president and field manager, C. E. Simmons, that a considerable delay would accrue before defendant could adjust its financial affairs and pay for the equipment and supplies necessary for the completion of the well under the original contract. The $500 per day waiting time was beginning to accrue and sound business judgment dictated that the tubing and other equipment be furnished without delay or that some other course be pursued. Under these circumstances, in order to eliminate the expenditure by defendant of the $500 per day for each 24 hours of waiting time and to permit the removal of the rig to another location where it would earn $150 per day on a rental basis, the defendant, through its vice president and field manager, accepted the well with the casing set as completed, and agreed to pay the contract rate of $2.25 per Henal foot. It was first the understanding that Simmons, acting for defendant, would complete the well with his equipment, but a day or two later it was agreed that plaintiff would complete the well, using other equipment, including the draw works and gin pole of Simmons for a consideration of $18 per hour for the actual working time. Simmons’ equipment wás eventually to be used by defendant in operating the weir and the removal and installation of such equipment at the well site was to its advantage and interest. That the new agreement between plaintiff and defendant was in the interest of the defendant corporation in eliminating the $500 a day waiting charge provided under the original contract admits of no dispute.

Following the consummation of the second agreement, plaintiff submitted its invoice under the original contract, which was approved by Simmons and forwarded to defendant at its domicile in New Orleans. In due course but with some delay this invoice was paid by defendant’s check delivered to plaintiff October 10, 1953.

A statement covering the work performed and material furnished, in accordance with the subsequent contract, was likewise submitted to Simmons on the completion of the work, which was also approved by him and forwarded to defendant’s office. Payment of this invoice was refused and this suit followed.

As heretofore pointed out, the principal defense of the Little Creek Oil Company of Louisiana, Inc., is predicated upon the contention that C. E. Simmons, its vice president, who was in charge of its field operations, did not have power and authority to bind the corporation by contract or agreement. However, in the original contract C. E. Simmons represented the defendant corporation and his authority is not only not disputed but is affirmatively admitted in the record. The record discloses that Simmons was the only experienced oil operator connected with defendant, whose capitalization was somewhat limited and which was engaged principally in the development of oil, gas and mineral leases owned- by it in LaSalle Parish. The wells contemplated were of shallow depth. Simmons, as vice president and field manager, was fully clothed with authority to conduct the company’s drilling operations in that area. That both plaintiff and defendant’s agent and officer were in good faith in their negotiations is clearly shown by the record and admits of no contrary contention. Therefore, as Simmons, as vice president and field manager of defendant, represented the defendant in the execution of the original written contract and acted for and on behalf of defendant corporation in the subsequent agreement, the benefits of which inured to and were accepted by defendant, his authority to represent the defendant in the affairs and operations of defendant, which had been placed in his charge, can not now be questioned or denied. A corporation is bound where its officer or agent acts without, or in excess of, his actual authority, if he acts within the scope of an apparent authority with which the corporation has clothed him. That this is the rule is recognized in 19 C.J.S., Corporations, § 996, p. 458, wherein it is stated:

“Although an officer or agent acts without, or in excess of, his actual authority, if he acts within the scope of an apparent authority, with which the corporation has clothed him by holding him out or permitting him to appear, as having such authority, the corporation is bound thereby in favor of a person who deals with him' in good faith in reliance on such apparent authority, as where an officer is allowed to exercise a particular authority with respect to the business of the corporation, or a particular branch of it, continuously and publicly, for a considerable time; * * *

Although the record does not establish that Simmons’ authority was limited in any way or to any extent within the course of the operation of defendant’s business in LaSalle Parish, plaintiff, a third person, would not be bound or affected had Simmons possessed only a limited authority, unknown to it, where he had been held out by the defendant as possessing full authority over the matters concerned. This general principle is recognized in the jurisprudence of this State. In Slagle v. Peyton, 182 La. 358, 162 So. 12, 15-16, it was stated:

“ ‘It is now well settled that when, in the usual course of business of a corporation, an officer has been allowed to manage its affairs, his authority to represent the corporation may be implied from the manner in which he has been permitted by the directors to transact its business. This is only the application of the principle that usual employment is evidence of the powers of an agent and the principal is held responsible for the acts of his agent within the apparent authority conferred on the agent.’ 7 R.C.L. 623. See, also, Fletcher on Corporations, § 2098; Corpus Juris, vol. 14A, pp. 423, 424, § 2275; City Savings Bank & Trust Co. v. Shreveport Brick Co., 172 La. 471, 134 So. 397; Uline Loan Co. v. Standard Oil Co., 45 S.D. 81, 185 N.W. 1012, 27 A.L.R. 585.
“ * * * What we hold is that this was intended to be a transaction for the corporation, which it cannot now, under the circumstances, repudiate.”

In quoting from Fletcher, Cyclopedia Corporations (Perm.Ed.), sec. 466, pp. 316, 317, this principle is further recognized and stated by the Supreme Court in Morgan v. Cedar Grove Ice Co., 215 La. 741, 41 So.2d 521, 523, as follows:

“ ‘ * * * a corporation is bound by contracts entered into by its officers and agents acting on behalf of the corporation and for its benefit, provided they act within the scope of their express or implied powers, and it makes no difference that the contracts are improvident, for the principal is bound as if the errors of judgment of the agent had been made by it, unless the agent was guilty of fraud in making the contract. An agent to whom a corporation intrusts the management of its local affairs may bind his company by a contract necessary and proper to be made in the ordinary prosecution of its business. And a defense interposed by a corporation that its agent had no authority to execute a contract on its behalf is looked upon with disfavor, especially where the contract has been executed in whole or in part. “It is the policy of the law and the endeavor of the courts to hold corporations as well as natural persons to their contracts.” ’ (Italics ours.) See also 2 Thompson On Corporations (3d Ed.), sec. 1518, p. 1110”.

See also Acadian Production Corporation of Louisiana v. Tennant, 222 La. 653, 63 So.2d 343.

It is not always necessary that the authority of an officer of a corporation be shown by resolution of its board of directors. The trial court correctly held that the defendant corporation could not accept and profit by the benefits arising from the cancellation of the original contract and its release from the obligation h> pay $500 a day waiting time and then repudiate the acts of its officer and the obligations arising from his acts. Simmons’ acts were in the interest of defendant and, as heretofore stated, were in keeping with sound business judgment. Under such circumstances, the formality of a resolution of defendant’s board specifically conferring authority upon him was unnecessary. For instance, in Gueydan v. T. P. Ranch Company, 156 La. 397, 403, 100 So. 541, 543, it was stated:

“It is a familiar principle in law that it is not always necessary to show the authority of an officer of a corporation by a resolution of its board of directors. A corporation may not, any more than an individual, reap the benefits flowing from the acts of its officers and repudiate the obligations arising from the same acts. Berlin v. P. L. Cusachs, Ltd., 114 La. 744, 38 So. 539; Gair Co. v. Columbia Rice [Packing] Co., 124 La. [193] 194, 50 So. 8; Boudreaux v. Feibleman, 105 La. [401] 404, 29 So. 881.”

Under the facts and circumstances of this case, as herein above detailed and in keeping with the legal principles just cited, the conclusion follows that a resolution of defendant’s board was not necessary to confer authority upon C. E. Simmons, its vice president and field manager, to alter to its advantage the original contract executed by him on behalf of defendant by the subsequent agreement. The conclusion is likewise inescapable that not only did Simmons have actual authority to so contract with plaintiff but that he was held out by defendant as possessing such authority. The defendant is, therefore, bound by the aforesaid contract entered into for and on its behalf.

That plaintiff performed the labor and completed the work and task contracted under the subsequent agreement under the constant supervision and direction of defendant’s agent and in strict accord with said contract and established drilling practices is fully established by the record. The invoice itemizing the work done and materials furnished bears the approval of defendant’s field manager and its correctness is established by the testimony of P. E. Trichel.

From our review of the record and for the reasons stated, we conclude that not only no manifest error appears in the judgment appealed from but that it is eminently correct. Accordingly, it is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: GLADNEY, Judge.

license: Public Domain

text:
    Laird D. ANDERSON, Plaintiff-Appellant, v. ST. PAUL MERCURY INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 8321.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Rehearing Denied Feb. 2, 1956.
    Writ of Certiorari Denied March 26, 1956.
    See also 81 So.2d 86.

      J. Vance Thompson, Alexandria, for appellant.
    Stafford & Pitts, Alexandria, Sam L. Wells, Colfax, for appellees.
   GLADNEY, Judge.

Plaintiff, a resident and citizen of Louisiana, was on January 26, 1951, in the employ of Graham & McGee, contractors, who were then engaged in levee construction operations on a job known as the “McNeely Setback” near Colfax, in Grant Parish, Louisiana. While so engaged as a mechanic within the scope of his employment, plaintiff suffered an injury to his back which is alleged to have resulted in permanent and total disability.

This suit was filed on October 30, 1951, in the Eighth Judicial District Court in and for Grant Parish, Louisiana, against St. Paul Mercury Indemnity Company as insurer of Graham & McGee, a partnership firm domiciled at Beaumont, Texas, for the purpose of recovering payments allegedly due under the Louisiana Workmen’s Compensation Act. LSA-R.S. 23:1021 et seq. The suit was removed to the United States District Court, Alexandria Division of the Western District of Louisiana, and by that court it was subsequently remanded to the State Court on March 10, 1954. 119 F. Supp. 222. Defendant, on March 11, 1954, filed an exception of no right of action and an answer. The principal defense embraced by the exception and also urged in the answer is that the insurance issued by this defendant restricted its liability for workmen’s compensation to operations of Graham & McGee within the State of Texas and did not extend protection to Graham & McGee against employer liability claims arising under the laws of the State of Louisiana. The Nineteenth Louisiana Levee District Board, also made party defendant herein by a supplemental and amended petition filed March 3, 1954, answered by denying it had entered into contractual relationship with Graham & McGee and pleaded the prescription found in the Workmen’s Compensation Act of Louisiana, LSA-R.S. 23:1209. After trial on the merits, there was judgment rejecting plaintiff’s demands against the defendant insurer and the defendant Levee Board, hence this appeal.

It was clearly established upon trial, and, in fact, not seriously contested, that plaintiff at the time of the injury was engaged in performing hazardous duties within the scope of his employment and his wages were such as to entitle him to the maximum weekly award of compensation provided under the Act. Likewise the medical evidence shows that at the time of trial the disability of plaintiff was of a total and permanent nature. It would, therefore, seem to follow that if defendant insurer issued workmen’s compensation insurance to Graham & McGee covering claims arising under the Louisiana Workmen’s Compensation Act, plaintiff should be entitled to judgment.

The defendant insurer, however, contends the policy which it issued to Graham & McGee was limited to liability of Graham & McGee under the Texas Workmen’s Compensation Statute, Vernon’s Ann. Civ. St. art. 8306 et seq.

As evidence of insurer’s liability appellant points to the testimony of L. P. McGee and a letter to the United States Army Engineer Corps written by Mrs. Linnie B. Martin of the Martin Insurance Agency. It is argued further that based on the aforesaid evidence, if it should be determined the insurance policies as written did not give protection under the Louisiana Act but only under the Texas Act, the policy as issued should be considered as amended or reformed so as to include protection against liability arising under the Louisiana Statute. Unfortunately for plaintiff, the evidence does not sustain McGee’s testimony. Mrs. Martin positively contradicts the testimony of McGee and declares that no such request was ever made to her, and the testimony of Paul W. Hardcastle, an officer of the Martin Insurance Agency, and of John M. Campbell, an officer of defendant insurer, clearly shows that no endorsement of Louisiana coverage was ever issued by the Martin Insurance Agency or by the defendant insurer. Furthermore, the letter of February 6, 1951, does not indicate more than notice of cancellation of certain policies, including those issued by defendant insurer to Graham & McGee and identified as workmen’s compensation policies No. 1097501, dated November 18, 1949, renewed with No. 6056661, dated November 18, 1950, the latter merely extending the effective date of the former. Cancellation as of February 15th was due to non-payments of premiums. The aforesaid policies were, of course, in effect on January 26, 1951, when plaintiff was injured, but these are the policies which defendant asserts do not apply to claims arising under the Louisiana Act. The letter does not indicate any liability beyond that, contained in the aforesaid policies.

Appellant also urges with respect to the liability of defendant insurer, that predicated upon the testimony of McGee, the insurance policies should not be restricted to that liability imposed by the Texas Workmen’s Compensation Statute, but should be broadened, supplemented or reformed so as to impose liability under the Louisiana Workmen’s Compensation Act. Contradiction of the written agreement through parol testimony is prohibited by the contract itself, as well as by rules of evidence. The policy provides:

“It is agreed that all of the provisions of each Workmen’s Compensation law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this policy, while this policy shall remain in force. Nothing herein contained shall operate to so extend this policy as to include within its terms any Workmen’s Compensation Law, scheme or plan not cited in an endorsement hereto attached.” (Emphasis ours.)

To yield to appellant’s contention, therefore, would involve the acceptance of parol testimony to contradict the terms of the written agreement which is inadmissible under our jurisprudence as shown by such authorities as L. J. Arguimbau & Co. v. Germania Insurance Company, 106 La. 139, 30 So. 148. See also: Hemel v. State Farm Mutual Automobile Insurance Company, 1947, 211 La. 95, 29 So.2d 483; Nyman v. Monteleone-Iberville Garage, Inc., 1947, 211 La. 375, 30 So.2d 123; Oil Well Supply Co. v. New York Life Insurance Company, 1949, 214 La. 772, 38 So.2d 777.

The plaintiff, we believe, has entirely failed to establish by a preponderance of the evidence that the provisions of defendant’s insurance policy covering the operations of Graham & McGee in Texas-under the Texas Workmen’s Compensation Act were extended or broadened to include the operations of said partnership in Louisiana, and under the Louisiana Workmen’s-Compensation Act. Therefore, if liability is to be imposed upon the defendant insurer it must be found within the bounds of the insurance contract as isssued by defendant insurer to Graham & McGee.

The front page of the policy in question in the instant case bears the caption: “Texas Standard Workmen’s Compensation and Employers’ Liability Policy”. In addition to the above quoted provision the following pertinent provisions plainly show the intention of the insurer to limit its coverage:

“Item 1. Name of this Employer: J. H. Graham and L. P. McGee, d/b/a Graham & McGee.
“P.O. Address: Box 31, Kountze, Texas.
“For the purpose of serving notice, as in the policy, provided, this Employer agrees that this address may be considered as both the residence and business address of this Employer or any representative upon whom notice may be served. Individual, Co-Partnership, Corporation or Estate? — Co-Partnership.
“Item 2. The period during which the Policy shall remain in force, unless, canceled as in the Policy provided, (herein called the Policy Period) shall be from November 18, 1950 to November 18, 1951, at twelve and one minute o’clock, A.M., standard time, as to each of said dates at the place where any operation covered hereby is conducted as respects that operation or at the place where any injury covered hereby is sustained, as respects that injury.
“Item 3. Locations of all factories, shops, yards, buildings, premises or other work places of this Employer, by Town or City, with Street and Number : Kountze, Texas and elsewhere in the State of Texas.
“All business operations, including the operative management and superintendence thereof, conducted at or from the locations and premises defined above as declared in each instance by a disclosure of estimated remuneration of employees under such of the following divisions as are undertaken by this Employer. 1. All industrial operations upon the premises. 2. All office forces. 3. All repairs of alterations to premises. 4. Specially rated operations on the premises. 5. Operations not on the premises.”
******
“Item 5. This Employer is conducting no other business operations at this or any other location not herein disclosed * * * except as herein stated: no exceptions.”

Careful examination of the policy in full reveals no reference to liability under the Louisiana Statute and counsel has failed to point out any reference to such among the provisions and endorsements attached to the policy.

Recently this court had occasion to examine the question of liability of the compensation insurer of the El Dorado Creosoting Company insofar as it could be considered as covering the liability of one of its employees for an injury sustained in Louisiana, in which instance the contention was made that the policy of insurance covering its business in Arkansas and its liability under the Workmen’s Compensation Act of that state included also liability of the insurer under the Louisiana Workmen’s Compensation Act. The insurance company therein relied upon the same defense as the defendant insurer does in this instance. See: Johnson v. El Dorado Creosoting Co., La.App.1954, 71 So.2d 613. This court held the contract between El Dorado Creosoting Company and its insurer restricted the liability of the insurer to the employer’s operations under the Arkansas Workmen’s Compensation Act, but did not impose liability under the Louisiana Workmen’s Compensation Act. There, as in the instant case, there was no specific endorsement nor any provisions in the policy for which liability could be claimed under any other but the single Workmen’s Compensation Act. We decided that by reason of the contract between the employer and the compensation insurer, the liability of the latter was limited to claims arising out of the Arkansas statute. This view was supported by the following authorities: Hurt v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Company, 1938, 175 Md. 403, 2 A.2d 402; Salkind v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Company, 1939, 335 Pa. 326, 6 A.2d 301; Pennsylvania Manufacturers’ Casualty Insurance Company v. Schmerbeck, 1942, 128 N.J.L. 180, 24 A.2d 573; Federal Underwriters Exchange v. Doyle, Tex.Civ.App.1937, 110 S.W.2d 618.

The issue of contractual liability in the instant case cannot be distinguished from the issue presented in Johnson v. El Dorado Creosoting Co., supra. It is, therefore, our conclusion that defendant insurer is not liable to plaintiff for workmen’s compensation predicated on the Louisiana Workmen’s Compensation Act.

In brief counsel for appellant urges that the District Court erred in several other respects. The first error assigned is that the plaintiff was entitled to a preliminary judgment which was never granted. The relevant facts show this case was remanded by order of the Federal District Court dated March 10, 1954. The purpose of the preliminary judgment as provided by LSA-R.S. 23:1316 is to provide for payment of accrued compensation until such time as the hearing of the issues on the merits is fixed by an order of court at the request of the defendant. On March 11th defendant filed its answer and, therefore, after that date the case was subject to trial upon fixation by the court. The delays attendant upon the trial of the case prior to the joining of issue by the defendant insurer are attributable to want of action by the Federal District Court, rather than to any fault of defendant insurer and certainly after the remand on March 10th there was no unusual delay which would justify a preliminary judgment. There was no abuse or discretion by the District Court in not acting upon plaintiff’s motion.

Appellant contends also that the District Court erred in imposing upon plaintiff the requirement of showing by a preponderance of the evidence that defendant insurer was liable under the terms of its policy. The insurer simply denied that its policy covered plaintiff’s accident and produced the policy for the purpose of proving its point. There is no special defense or special plea presented and, therefore, plaintiff was not relieved from establishing defendant’s liability under its policy by a preponderance of the evidence.

Finally, we refer to the defenses tendered by the Nineteenth Louisiana Levee District Board, which are: (1) that plaintiff’s claim is prescribed under the provisions of the Workmen’s Compensation Act, LSA-R.S. 23:1209, and (2) that defendant Levee Board had no contractual relationship with Graham & McGee but only furnished the rights of way in connection with the levee work. Inasmuch as the plea of prescription is clearly applicable, we shall not discuss evidence material to the question of the relationship between the Levee Board and plaintiff’s employer. Section 1209 is not only a statute of limitation' or prescription, but actually provides for a period of peremption after which the remedy is barred. The record clearly shows that defendant Levee Board was not made a party to nor was citation issued prior to the filing of plaintiff’s amended and supplemented petition as of March 3, 1954. Consequently, over three years had elapsed from the time of plaintiff’s injury until the Levee Board was sued on his claim.

As a result of our study of the record and the careful and complete briefs filed on behalf of all parties herein involved, we are of the opinion that defendant insurer is not liable under its insurance contract with Graham & McGee with respect to claims arising under the Louisiana Workmen’s Compensation Act, and defendant Levee Board has successfully urged a plea of prescription under the Workmen’s Compensation Act, LSA-R.S. 23:1209. Accordingly, plaintiff’s claim must be rejected as against these two defendants. The judgment from which appealed will, therefore, be affirmed at appellant’s cost.


author: HARDY, Judge.

text:
    C. E. HASTINGS, Plaintiff-Appellant, v. HOMEWOOD DEVELOPMENT COMPANY, Inc., et al., Defendant-Appellee.
    No. 8358.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Rehearing Denied Feb. 2, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.

      Russell E. Gahagan, Natchitoches, for appellant.
    T. C. McLure, Jr., Alexandria, for ap-pellee.
   HARDY, Judge.

This is a suit by plaintiff against his employer and its insurer in which he claims the maximum allowable weekly compensation as for total and permanent disability. After trial there was judgment in favor of defendants rejecting plaintiff’s demands, from which he has appealed.

Plaintiff alleged that while engaged in the usual course of his work on October 3, 1952, he suffered an accident, later determined to have been caused by a heart attack, the result of which has rendered him totally and permanently disabled from the continuance of manual labor, which accident and the resulting disability was due solely and entirely to the strenuous work and strain in which he was engaged in the course of his employment. Defendants deny the occurrence of any accident or any causal connection between plaintiff’s disability and his employment.

Certain facts were established without dispute, namely, that on October 3, 1952, plaintiff was engaged in assembling door units, working by hand and with the aid of power tools, in a shop maintained and operated by his employer, and that he was admitted to the Baptist Plospital in Alexandria on October 4, 1952, at which time it was determined that he had suffered a coronary occlusion.

Plaintiff testified that at or about 3:00 o’clock in the afternoon, having finished his work on the assembly of a door, he carried the unit from his work bench to a point in the shop some fifty feet distant and that when he had set the door down he became sick, nauseated, hot and affected with chest pains; that he returned to his work table and rested there for some twenty or thirty minutes until a fellow employee, Parker by name, returned to the shop, at which time he complained of feeling sick, went to the wash room, bathed his face, and sat down to rest, and that he performed no more work during the afternoon. After leaving work Parker drove plaintiff to a point near the Town of Boyce, where plaintiff had left his automobile, and plaintiff drove on to his home. Plaintiff further testified that upon reaching home he complained to- his wife of being sick; that he went to bed and remained there until the next day when the pain in his chest and left arm had become so severe that his wife drove him to the hospital in Alexandria.

If plaintiff’s testimony on the above noted points, and details in connection therewith, should be accepted as convincing, and if it had been sufficiently corroborated by surrounding circumstances, unquestionably it would serve to establish his contention that he suffered an “accident” while engaged in the course and scope of his employment, despite the fact that there were no external evidences nor objective symptoms of injury. However, plaintiff’s testimony was so marked by inconsistencies and apparent contradictions that thorough examination and careful study thereof, in our opinion, fails to justify the factual conclusion for which he contends. We think it unnecessary to enter into any detailed analysis of plaintiff’s testimony and will point out only a few instances of the irregularities with which his testimony was marked. Although plaintiff insists that he suffered immediate pain which steadily grew more severe, he did not, indeed he would not, testify that he had given Dr. Hardy, his attending physician, any information to this effect. Plaintiff resisted, in what was either an evasion or a refusal to answer despite diligent questioning by his counsel and by the court. On the other hand, Dr. H. H. Hardy, Jr. of Alexandria, who attended and treated plaintiff after his admission to the hospital, as a witness for defendant testified unequivocally that plaintiff gave him no history whatsoever of the occurrence of an attack while engaged in his work on October 3rd, but did inform him that he developed the severe chest pain radiating into his arm approximately one hour before his admission to the hospital.

Defendant employer’s foreman, one Coleman, testified that he visited plaintiff in the hospital several days after his admittance and plaintiff advised him that he suffered his attack after he had chased some hogs out of his yard following his return home from work on October 3rd. This was steadily denied in the testimony of plaintiff’s wife, although Coleman testified that she was not present on the occasion of his visit with plaintiff. Plaintiff testified that he had no recollection of a visit from Coleman.

Another circumstance which gives rise to some doubt as to the validity of plaintiff’s attempt to connect his heart trouble with his employment is found in the fact that although plaintiff contends he suffered the attack while at work on October 3rd, no demand was made upon his employer until May 19, 1953, when plaintiff’s attorney notified the employer of plaintiff’s disability and made demand for compensation. This lapse of more than seven months is not explained except by plaintiff’s testimony, under questioning by his counsel, that he had been advised to await the outcome of a claim by another employee of this defendant based upon a heart attack, which case was also being handled by plaintiff’s counsel. This claim was settled by a compromise, as is established by the record, entered into on the 6th day of April, 1953.

According to the testimony of all of the medical witnesses who appeared in the case and testified on the point, a coronary occlusion is customarily accompanied by immediate and severe pain. It is significant that plaintiff, though he testified on trial that he began to suffer immediate pain from the onset of the attack, which steadily increased in severity, made no complaint of pain to his fellow employee Parker either before leaving his place of employment or while driving with Parker after leaving work. ,

Both plaintiff and his wife testified that in answer to questioning about a possible connection between plaintiff’s work and his heart attack Dr. Hardy expressed the opinion that there was no connection and that tobacco was the only thing that could cause a heart attack. This statement alleged to have been made by an able and experienced practitioner is patently unbelievable.

Our conclusion thoroughly accords with the finding of the district judge whose opinion contained the statement that

“ * * * a reading and re-reading of the record has not been convincing that plaintiff has borne the burden resting upon him to prove the occurrence by the preponderance of the evidence. Neither do the surrounding circumstances reasonably corroborate his version of the attack coming upon him while at work.”

The liberality of interpretation and application of the Workmen’s Compensation Statute in favor of a claimant cannot be considered as supplying obvious deficiencies in proof.

While we would be justified in resting our determination of this appeal upon the finding above stated, we, nonetheless, think it appropriate to discuss the second issue which is tendered, bearing upon the causal connection between plaintiff’s disability and the work in which he was engaged. In order to justify our attention to this proposition it is necessary for the sake of argument, and only for that purpose, to concede the occurrence of an “accident” during the actual performance of work in the course of employment.

It is now well established that the term “injury arising from accident” must be comprehensively interpreted to the end that it embraces the collapse or giving way of affected parts of the body or organs thereof. It is therefore necessary for us to examine the effect of the heart attack suffered by plaintiff.

The medical experts who testified in this case are in agreement on a majority of the material points concerned, namely that the occlusion suffered by plaintiff was brought on by a degenerative disease of the heart and that an occlusion may occur as often under conditions of complete body rest and physical relaxation as during periods of exercise or exertion. The disease itself consists of a more or less gradual degeneration or weakening of the arteries of the heart and the actual occlusion is attributable to the cessation of the necessary supply of blood to a portion of the heart, which occurrence may be due to a thrombosis or embolus, or to a constriction of the blood vessels due to the hardening of the arteries.

In the instant case Dr. Hardy, the attending physician, refused to express an opinion as to a connection between the work in which plaintiff was engaged and the subsequent development of symptoms of his trouble.

Dr. Francis M. Bryan, a witness for plaintiff, testified that he examined Mr. Hastings on March 23, 1953, and his opinion may be summed up in the following answer to a question by plaintiff’s counsel on direct examination:

“Well, we know coronary heart disease is a degenerative or weakening disease of the arteries of the heart, and consequently a sudden strain, exercise, work, or whatever could conceivably contribute to a heart attack.” (Emphasis supplied.)

We find little help afforded by the testimony of two other expert witnesses tendered on behalf of plaintiff, Drs. Ferguson and Roy of Natchitoches, who testified by deposition. Neither of these witnesses made any examination of plaintiff and their testimony was confined to answering hypothetical questions, which questions did not sufficiently accord with our evaluation of the facts established in the instant case to a degree which would justify attaching any great weight or importance to the answers.

We think it must be admitted that the relationship between employment and affections of the heart presents an extremely close question which in many cases is not susceptible of certain determination. The medical testimony in the instant case, in our opinion, generally accords with the same character and nature of testimony in other similar cases and, at best, must be considered as being of a highly speculative quality. In view of this resultant uncertainty we have attempted to make a careful examination of the jurisprudence of the State bearing upon comparable factual circumstances as developed in cases involving alleged disability from heart affections.

The case of Nickelberry v. Ritchie Grocer Co., 196 La. 1011, 200 So. 330, was responsible for the establishment of a number of general principles which we think have been somewhat consistently maintained in subsequent cases and which principles we enumerate as follows:

(1). The legal requirements necessary to constitute an accident are fulfilled when the facts of a case disclose that many factors such as excessive heat, heavy lifting, or straining, or excessive exertion have caused or contributed to a physical breakdown or have accelerated its occurrence. In support of this general rule the Supreme Court cited Becton v. Deas Paving Co., Inc., 3 La.App. 683; Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; and Richey v. Union Paving Co., La.App., 151 So. 657.

(2). The burden of proof is upon plaintiff to establish the factual circumstances justifying the conclusion of a causal connection between injury and employment. In connection with this proposition the court approved the rejection of plaintiff’s demands in Kirk v. E. L. Bruce Co., La.App., 190 So. 840, and Lynn v. Arkansas Fuel Oil Co., La.App., 192 So. 764.

(3). The development of heart disease by a workman while engaged in his employment does not necessarily entitle him to compensation.

(4). The employer is not the insurer of his employees.

In cases of this nature courts are and should be primarily influenced to a conclusion by the opinions of medical experts. But where, as in the instant case, such opinion does not serve to justify a conclusion of causal relationship between employment and injury, the facts themselves, judged from the view of a layman, must be carefully examined in the attempt to ascertain any conditions connected with physical strain or exertion which may be reasonably concluded to have caused, accelerated or contributed to a physical breakdown.

Insofar as we are able to determine our courts have adhered to the general principle which was approved in the Nickel-berry case, supra. In the absence of evidence of traumatic injury or sudden and violent occurrences it is required that plaintiff make a showing of strenuous physical exertion or of the presence of attendant conditions such as excessive heat. This is noted by Professor Malone in his work on Louisiana Workmen’s Compensation, Section 256, page 314:

“Trauma usually associated with any strenuous employment is often sufficient to bring about the disability or death of an employee suffering from a diseased heart or high blood pressure. Complications in proving causation arise from the fact that the natural progress of pre-existing heart infirmities can produce disability at any moment regardless of any outside influence. However, it is well settled in medical science that exertion and heat characteristic of heavy physical duties can cause severe injury to a weakened heart or blood vessel. Becton v. Deas Paving Co., Inc., 3 La.App. 683; Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; Ozbolt v. Weber-King Mfg. Co., La.App., 193 So. 383. The issue of causal relation is now usually resolved into the sufficiency of alleged exertions and overheating to injure the heart or blood vessel in the specific case. Stoking a furnace, Ozbolt v. Weber-King Mfg. Co., supra; Becton v. Deas Paving Co., Inc., supra; Henderson v. E. L. Dalton & Co., La.App., 47 So.2d 111; carrying ice, Wright v. Louisiana Ice & Utilities Co., supra; operating a drag line, Richey v. Union Paving Co., La.App., 151 So. 657; Hemphill v. Tremont Lbr. Co., 209 La. 885, 25 So.2d 625; sawing wood, Brister v. Miller, La.App., 178. So. 284; carrying cross ties, Jackson v. Travelers’ Ins. Co., 180 La. 43, 156 So. 169; cooking glue, Murray v. Mengel Co., La.App., 9 So.2d 818; and boiler making, Hester v. Tremont Lbr. Co., La.App., 15 So. 2d 94; have all been held to have aggravated the employee’s pre-existing weakened condition.”

We find what we regard as an authoritative guide to the resolution of the instant case in the opinion of Mr. Chief Justice Fournet in Hemphill v. Tremont Lbr. Co., cited supra, 209 La. 885, 25 So.2d 625, 627:

“We think the overwhelming preponderance of the evidence shows that the strain on Hemphill’s heart because of the strenuousness of the work and the heated conditions under which he was working were the motivating causes of his death. This was the unqualified and unanimous conclusion of all three of the plaintiff’s expert witnesses and their testimony was not in any way weakened or refuted by the defendant’s medical experts.” (Emphasis supplied.)

Examining the established facts of the instant case, in the light of the above pronouncement, we do not find that plaintiff’s work at the time of the alleged accident involved strenuous physical exertion of a nature which would indicate any sort of strain, heavy lifting or other strenuous effort, and certainly there is not the slightest evidence that plaintiff was suffering from excessive heat, or other outside conditions which would have affected his physical condition.

Our most recent consideration of a case involving a heart affection was in the case of Sepulvado v. Mansfield Hardwood Lumber Co., La.App., 75 So.2d 529, in which we found that plaintiff’s decedent had been engaged in exceedingly strenuous physical exertion, under exposure to unusual heat, which factors, according to the preponderance of the testimony of the medical experts were a direct cause of the disturbance of the plaques of the circulatory system and consequent formation of an occlusion. No similar facts have been established in the instant case.

We think plaintiff has failed, first, to establish the actual occurrence of the heart attack while engaged in the course of his employment, and, second, any causal connection between his work and his resultant physical disability. It follows that the judgment appealed from is correct and, accordingly, it is affirmed at appellant’s cost.


author: HARDY, Judge. AYRES, Judge.

text:
    Mrs. Zeola Koen BRINSON, Plaintiff-Appellee, v. Mrs. Effie Mae King BRINSON, et al., Defendants-Appellants.
    No. 8422.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 2, 1955.
    On Rehearing Feb. 2, 1956.
    Writ of Certiorari Granted March 26, 1956.

      Eug-ene J. Coen, Noel Adams, Jr., Shreveport, for appellants.
    Cook, Clark & Egan, Shreveport, for ap-pellee.
   HARDY, Judge.

This is a suit by Zeola Koen Brinson, a resident of Hattiesburg, Mississippi, alleging herself to be the true and lawful widow of Willie Leon Brinson, deceased, and as such entitled to be recognized as the owner of an undivided one-half interest in and to all the property of which the said decedent died possessed. Made defendants therein were Effie Mae King Brin-son, Fred N., Hugh D., and Walter B. Brinson, who, previous to the filing of this suit, had been recognized as the surviving spouse and children and heirs of the decedent and as such sent into possession of the property belonging to his succession. The defendant, Effie Mae King Brinson, answered plaintiff’s suit; generally denying the allegations of plaintiff’s petition and specifically representing herself-to be the legal wife of the decedent and as such entitled to the ownership of property left by him in the State of Louisiana. On behalf of the three sons of the decedent, nonresidents who were served through a curator ad hoc, answers were filed by the curator.

After trial there was judgment in favor of plaintiff recognizing her as the lawful common-law wife of Willie Leon Brinson, deceased; further recognizing Effie Mae King Brinson as the putative wife of said decedent and as such entitled to an undivided one-half interest each in property belonging to the Succession of Willie Leon Brinson, subject to the payment of all debts. There was further judgment in accordance with the prayer for relief on behalf of defendant, Effie Mae King Brinson, against Hugh D., Fred N. and Walter B. Brinson decreeing the deed executed by the last three named parties in favor of Effie Mae King Brinson, purportedly conveying their interest in the property of the decedent, to be a nullity and reserving to the said Ethel Mae King Brinson the right, in an appropriate proceeding, to claim the return of the purchase price paid thereunder.

From the judgment defendant, Effie Mae King Brinson, prosecutes this appeal. There being no appeal on the part of the other defendants the judgment, of course, is not here at issue with respect to their rights.

The plain facts which are material to a consideration of the issues here presented are concerned with the somewhat complicated tri-state marital experiences of the decedent, Willie Leon Brinson, which are set forth in chronological order as follows:

Willie Leon Brinson was first married in a ceremony performed in Brook-haven, Mississippi, on May 22, 1921, to Annie Lillian Taylor. Of this marriage four children were born, one of whom died unmarried and without issue, the other three, named as defendants in this suit, being Hugh D., Fred N. and Walter B. Brinson.
On September 11, 1931, in Gulf-port, Mississippi, Willie Leon Brinson was ceremonially married to Zeola Lee Koen pursuant to a license authorizing the marriage of “Walter Leonard Bren-son.”
By decree of the Chancery Court of Pulaski County, Arkansas, dated November 3, 1932, Willie Leon Brinson, plaintiff in an action against Annie L. Brinson, defendant, was granted an absolute divorce. It is to be noted that this decree of divorce, inter alia, recited the admission of the testimony by deposition of Zeola Koen.
On October 10, 1933, in the Chancery Court of the County of Lincoln, State of Mississippi, a decree of absolute divorce was rendered in the suit of Annie Lillian Brinson v. Willie Leon Brinson.
On June 29, 1946, pursuant to a marriage license duly issued by the clerk of court of Bossier Parish, a ceremony of marriage was celebrated between Willie Leon Brinson and Effie Marie Reynolds.
Willie Leon Brinson died on February 9, 1952, at the residence in Caddo Parish occupied by him and Effie Mae Brinson as a common dwelling.

The record unquestionably establishes the fact that following the celebration of the ceremony of marriage on September 11, 1931, Willie Leon Brinson and the plaintiff in this suit, Zeola Koen, living together as husband and wife, established their residence from time to time at localities in Mississippi and other states. During part of the year 1945 this couple was living in Hattiesburg, Mississippi, in a home which they had purchased under a deed describing them as husband and wife. Following his marriage with the defendant, Effie Mae King (Reynolds), Willie Leon Brinson established a matrimonial domicile in Caddo Parish where he and the said Effie Mae King Brinson lived as husband and wife in a home which they had purchased under a deed describing them as husband and wife.

No children were born to Willie Leon Brinson save those by his marriage to Annie Lillian Taylor.

Proceedings in the Succession of Willie Leon Brinson, Suit No. 111,329 on the docket of the First Judicial District Court in and for Caddo Parish, Louisiana, were opened on April 14, 1952 by Effie Mae King Brinson, representing herself as the surviving widow, and the three sons herein-above named, who appeared as the sole surviving heirs of the decedent. On the same date an ex parte judgment was duly signed which placed the said named parties, as widow and heirs of the decedent, in possession of his estate in the proportions of an undivided one-half interest in and to the said widow and an undivided one-sixth interest to each of the three sons.

The suit before us was instituted by Zeola Koen Brinson as plaintiff on August 1, 1952.

The contentions of the parties to this appeal and the issues tendered thereby may be simply stated by observing that the plaintiff-appellee and defendant-appellant each claims to be the sole surviving legal widow of Willie Leon Brinson and as such entitled to the wife’s interest in the estate of the decedent. And, of course, each of the parties denies the lawful marital status of the other and contests any legal rights flowing therefrom.

By a supplemental petition the plaintiff, Zeola Koen Brinson, averred that in the event she should not be recognized as the lawful wife of Willie Leon Brinson as a consequence of the ceremonial marriage performed in 1931, that, nevertheless, she was the lawful common-law wife of the said Willie Leon Brinson under the laws of the State of Mississippi at the time of his death in 1952. Elaborating upon this position plaintiff alleged that the marriage of the decedent with Effie Mae King was a nullity and that the latter entered into the marriage with full knowledge that plaintiff was the living, undivorced wife of Willie Leon Brinson.

Defendant-appellant as positively attacks the status of the plaintiff and specifically denies the good faith of plaintiff in entering into the marriage with Willie Leon Brin-son in 1931.

Consideration of the record, which is almost as involved as the marital relations about which it is concerned, persuades us that the material facts have been convincingly established.- Without the necessity for entering into a detailed discussion of the testimony we think it is clear that both plaintiff and defendant entered into their respective relationship with Willie Leon Brinson in good faith. It is evident that at some time subsequent to the performance of the ceremonial marriage in 1931 Zeola Koen discovered, if not all, at least a part of the truth with reference to her husband’s marriage to Annie Lillian Taylor, and we think it most probable that she even knew, or strongly suspected, that this marriage had not been legally dissolved. Be this as it may, and disregarding the nullity of the Pulaski County, Arkansas divorce procured by Brinson in 1932, it is un-disputable that his marriage with Annie Lillian Taylor was legally dissolved as the result of the judgment of divorce decreed in her action in Lincoln County, Mississippi in 1933. Nor is there any room for doubt on the point that, following the dissolution of this marriage, Willie Leon Brinson and Zeola Koen continued to live together as husband and wife, which relationship endured as to them both at least until Brin-son’s marriage to Effie Mae Reynolds in 1946. We think it is equally certain that this plaintiff was entirely without knowledge of Brinson’s purported marriage to this defendant. Nor is it established that the defendant had any knowledge of Brin-son’s relationship with plaintiff prior to his death. Indeed, we feel assured that after the ceremony of 1946 Brinson was successful in fulfilling his obligations as husband to two wives and equally successful in concealing his dual relationship from them both.

Before terminating our discussion of the facts of the case we think it desirable to give some attention to defendant’s attack upon plaintiff’s good faith. As we have above observed, we think plaintiff’s good faith in the inception of her relationship with Brinson has been adequately established. But it is urged on behalf of defendant that the deposition purported to have been given by Zeola Koen in the Arkansas action for a divorce from Annie Lillian Taylor instituted by Willie Leon Brinson, in which deposition the deponent asserted that she had known Willie Leon Brinson and his wife, Annie Lillian Taylor, for approximately ten years prior to the date of the giving of the deposition in 1932, is convincing proof of the bad faith attributable to Zeola Koen. We think this position would unquestionably be sound if the facts upon which it rests had been established. But Zeola Koen, testifying as a witness in the instant case, positively and repeatedly denied any knowledge of such deposition, even after the trial judge had taken occasion to meticulously explain the meaning of the word “deposition” and the legal consequence which might result from' the false testimony of the witness. We cannot reasonably conclude that in the face of this explanation and warning the witness would persist in testifying falsely on this point. We.also point out in further support of this conclusion the fact that no attempt was made on behalf of the defendant to incorporate in the record any testimony which would have detracted from the effect of plaintiff’s sworn denial. Neither does it require any flight of imagination to assume that one so skilled and experienced as the decedent in the fine art of becoming married and unmarried, apparently entirely unaffected by any scruples of ethics or pangs of. conscience, would have found it advisable to introduce a helpful deposition in the name of Zeola Koen without bothering to consult her about the matter or even obtaining her signature thereto.

We think the legal propositions resulting from Willie Leon Brinson’s adventures into plural marriage may be stated in terms' which are much simpler and more readily understandable than the complicated facts above related. As we appreciate the facts, the propositions of law which are here concerned may be stated as follows:

(1). Would the relationship between Willie Leon Brinson and Zeola Koen constitute a valid common-law marriage under Mississippi law?
(2). Is a common-law marriage, valid under the laws of Mississippi, entitled to recognition by the courts of Louisiana.
(3). In case a marriage is void because of an existing impediment thereto do the' parties become entitled to be legally recognized as husband and wife following the removal of the impediment by continuing to occupy such a factual relationship ?

With respect to the first proposition above, the record contains the testimony.of Mr. Homer W. Pittman, member of the Hattiesburg, Mississippi Bar, a practicing attorney in that state since 1931; for four years County Prosecuting Attorney; for four years District Attorney, and former past President of the Hattiesburg Bar, in which he described the elements of a valid common-law marriage under the law of Mississippi as an agreement by the parties to live together as husband and wife followed by cohabitation. The witness further testified that a common-law marriage is as valid and binding in the State of'Mississippi as a ceremonial marriage, and is subject to termination only by divorce or' death.

The witness quoted from Section 461 of the Mississippi Code (the State statute of 1942 and the supplement of 1950), dealing with ceremonial marriages, as follows:

“The failure to comply with the provisions of this Section shall not affect the validity of any marriage duly solemnized, followed by cohabitation, nor the validity of common law marriages as heretofore recognized in the State.”

We think the validity of the witness’ opinion is fully confirmed by the jurisprudence of the State of Mississippi and we cite particularly the decision of the Supreme Court of Mississippi in D’Antonio v. State, 187 Miss. 648, 191 So. 281, in which the court cited a number of cases supporting its position. In the course of the opinion the court unequivocally declared that a common-law marriage was effected by parties who had lived and cohabited together as man and wife and openly proclaimed that relationship over a period of several months, and that under the statutes such relation constituted a valid marriage. The court further specifically declared that a common-law marriage in that state was as valid and binding as the statutory ceremonial marriage.

Under the facts as above set forth, which incontrovertibly established the openly proclaimed and recognized relationship of the parties involved, it follows that the common-law marriage entered into by Willie L. Brinson and Zoela Koen was valid and legal under the laws of the State of Mississippi and subject to termination only by a judicially pronounced decree of divorce or by death.

The second proposition is easily resolved, for the Supreme Court of Louisiana has held in numerous instances that common-law marriages which are valid and legally binding in the State where contracted are entitled to recognition in the State of Louisiana; Grant v. Succession of Grant, 159 La. 535, 105 So. 611; Gibbs v. Illinois Central Railway Co., 169 La. 450, 125 So. 445; Succession of Marinoni, 177 La. 592, 148 So. 888.

Counsel for defendant insists that the cases immediately above cited are to be distinguished because there was no question of good faith involved. Since we have definitely affirmed the good faith of this plaintiff it follows that counsel’s objection is without merit.

With respect to the third proposition above enumerated, we begin its discussion with the observation that there is no question as to the point that the marriage between Willie L. Brinson and Zeola Koen was bigamous and therefore absolutely void and of no effect by reason of the existence of Willie Leon Brinson’s undissolved marriage with Annie Lillian Taylor. This previous marriage was an existing legal impediment which, however, was dissolved by the divorce decree granted to Annie Taylor Brinson in 1933. This decree had the effect of removing the impediment and opening the way to the validating of the relationship of husband and wife between Willie Leon Brinson and Zeola Koen. It is contended by able counsel for defendant that since the inception of the relationship was of a bigamous nature, completely void and of no effect, it could not, even after the removal of the impediment, ripen into a valid and lawful relationship. The authorities cited by counsel in support of this proposition are not persuasive, inasmuch as they rely upon the lack of good faith. Contrary to the contention advanced, we think the jurisprudence of Mississippi af-. firmatively holds that, notwithstanding a marriage may be void because of an existing impediment, the parties thereto are entitled to be recognized as occupying the status of husband and wife if they continue such relationship in fact after removal of the impediment without the necessity of a new marriage agreement; Sims v. Sims, 122 Miss. 745, 85 So. 73. This case comprehends an exhaustive discussion of the-very point with which we are here concerned and its holding has been recently cited and approved by the Supreme Court of Mississippi in the case In re McCaskill’s Estate, 219 Miss. 313, 68 So.2d 495.

Inasmuch as our appreciation of the law has led us to an affirmative answer to-each of the three propositions which we have above phrased, it follows that the judgment appealed from should be and, accordingly, it is affirmed at appellant’s cost..

On Rehearing

AYRES, Judge.

On an application for rehearing, it developed that this court had not had the-benefit of various documents and other exhibits introduced and filed in evidence. This rehearing was granted to afford us-the opportunity of obtaining these exhibits-from the Supreme Court, to which court an appeal was originally directed. 228 La. 350, 82 So.2d 36. The documents were accordingly procured and made available to-us and counsel on this rehearing.

Neither in argument nor in brief has-counsel for appellant pointed out any facts- or circumstances in these exhibits that would warrant or justify a change in the-conclusions heretofore reached. Our own inspection and examination of these offerings does not reveal any such facts or circumstances.

For these reasons, our original decree is reinstated and made the final judgment of this court.

And it is so ordered.


author: GLADNEY, Judge. AYRES, Judge.

text:
    Enoch J. ORR, Plaintiff-Appellee, v. Sarah Edna TALLEY and James Talley, Defendants-Appellants.
    No. 8412.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 2, 1955.
    On Rehearing Feb. 2, 1956.
    Writ of Certiorari Denied March 26, 1956.

      McConnell & McConnell, Springhill, Warren Hunt, Rayville, for appellants.
    Roy M. Fish, Springhill, Campbell & Campbell, Minden, for appellee.
   GLADNEY, Judge.

Enoch J. Orr instituted this petitory action praying to be decreed the owner of and as such restored to the possession of a strip of land 30'x 420', situated in the Southeast Quarter of the Southwest Quarter (SE14 of SWj4), Section Nineteen (19), Township Twenty-Three North (23 N.), Range Ten West (10 W.), in Webster Parish, Louisiana.

Numerous exceptions were filed by respondents, including an exception of no cause or right of action and a plea of prescription of ten years, acquirendi causa, which exceptions and plea were overruled save the exception of no cause or right of action which was referred to the merits. Thereafter, defendants answered denying plaintiff has any recorded title to the disputed property, claiming ownership in themselves, and, alternatively, asking through re-conventional demand for reimbursement for improvements placed upon the subject tract should plaintiff be decreed the owner thereof. Following trial judgment was rendered recognizing plaintiff as the owner of the land, ordering possession to be restored to him and awarding judgment in reconvention in favor of defendants for improvements placed upon the property in good faith in the sum of $425.

Appellee was formerly the owner of the above described 40 acres of land when on November 8 and November 15, 1937, he sold two parcels out of the forty to T. L. Et-tredge, to whom defendants trace title to their property, which was purchased on March 14, 1942, and is described as follows r

“Commence at the southwest (SW) corner of the Southeast quarter of the Southwest quarter (SEj4 of SWj4), of Section 19, Township 23 North, Range 10 West, Webster Parish, Louisiana, and thence run East (E) 541 feet for the initial point of beginning; thence run North (N) 420 feet; thence run East (E) 105 feet; thence run South (S) 420 feet; thence run West (W) 105 feet to the point of beginning, containing One (1) acre, more or less, together with all improvements thereon, and all rights thereto belonging.”

Immediately west of the property of the defendants is a lot which was acquired by •one M. A. Curtis, who upon the purchase thereof caused a survey to be made of his property which survey proved the southwest ■corner of said 40 acres, all of which had been previously owned by Orr, was 30 feet -west of the point which Orr used for a starting point in locating all lots theretofore sold 'by him. With this disclosure it is clear that ■the lot occupied by M. A. Curtis and the lot ■occupied by the defendants were each 30 feet east of the description called for in their respective deeds of title. Accordingly, Orr attempted to correct the error and ■conveyed to M. A. Curtis a strip'30 feet wide lying immediately west of the lot possessed by Curtis, and the latter in turn abandoned a strip 30 feet wide off of the east side of the lot he had occupied as his own. Orr •then attempted to quit-claim to the defendants the 30-foot strip abandoned by Curtis. Parenthetically, it should be noted this 30-foot strip was already embraced in defendants’ title. The Talleys declined to enter into any agreement with Orr for the purpose •of correcting descriptions of the several lots involved, but nonetheless they not only went into possession of the 30-foot strip aban•doned by Curtis but also retained possession ■of the 30 feet on the east side of the lot ■which possession they had had since 1942. Defendants thus are in possession of a lot 135 feet measuring from east to west and ■420 feet measuring from south to north. Included on the east side thereof is the strip which is the subject of this suit. When plaintiff was unable to prevail upon defendants to relinquish possession of the disputed strip, this suit was instituted.

We have carefully examined the deeds and title papers found in the record and it is clear that the disputed 30-foot strip is not embraced in defendants’ recorded title and it is equally clear that none of the recorded instruments disclose that plaintiff has parted with title thereto.

We assume that defendants’ exception of no cause or right of action was filed on the assumption that plaintiff had parted with title thereto or that at least a portion of said strip was included m a deed executed by Orr for the purpose of establishing a iroad. This conveyance dated August 16, 1944, and recorded in Conveyance Book No. 167, page 301, of the records of Webster Parish described the property sought to be conveyed as follows:

“That certain parcel of land designated for a road situated in SE}4 of SW1/^ Sec. 19, Township 23 N. Range 10 West, Webster Parish, La.; Begin at SE corner of SEj4 of SW14 and run along Parish Highway 646 feet; Thence North 420 feet by 15 feet wide; thence East 500 feet by 12 feet wide.”

Manifestly, the foregoing description is insufficient to identify any property, but even conceding the sufficiency thereof if certain deficiencies in the description should be supplied, the road would still lie to the east of the 30-foot strip in dispute and would not conflict with the property in dispute.

The muniments of title evidenced by the record show clearly that plaintiff is entitled to be recognized as the legal owner of the land sued for, inasmuch as there is no evidence of plaintiff having disposed of said property and defendants’ only claim of title is based on possession of property not embraced in their deed. It thus follows that plaintiff is entitled to be decreed the owner of the disputed property and should be restored to the possession thereof.

This brings us to the consideration of whether or not defendants are entitled to be reimbursed the value of improvements which they placed upon the property. Defendants occupied the property in dispute first when they took possession of their lot immediately after its acquisition by them. Plaintiff was responsible for the error which brought on this controversy by fixing the starting point of the description of defendants’ property 30 feet east of its proper position. There should be no doubt, therefore, that prior to the dispute defendants were in the utmost good faith in their possession of the disputed tract. Accordingly, under the provisions of Article 508 of the LSA-Civil Code, the defendants should be reimbursed the value of the improvements placed on said property. We have carefully reviewed the testimony relating to the value' of the improvements placed on the disputed strip by defendants and agree that the sum of $425 as allowed by the judge a quo is entirely adequate.

The several exceptions and the plea of prescription filed by defendants are not seriously urged in this court and do not require comment. We have heretofore pointed out that the exception of no cause and right of action predicated on plaintiff not having recorded title to the disputed strip is not sound. The plea of prescription of ten years acquirendi causa is likewise untenable inasmuch as defendants do not have a deed translative of title to the property involved.

It is further ordered, adjudged and decreed that plaintiff, Enoch J. Orr, be and he is hereby recognized and declared to be the lawful owner, and as such entitled to possession of the following described property situated in Webster Parish, Louisiana, to wit:

“Begin at the Southwest corner of the Southeast Quarter of the Southwest Quarter, (SE^4 of SW^4), Section 19, Township 23 North, Range 10 West, thence run East 646 feet to the point of beginning of the property herein described; thence run North 420 feet; thence run East 30 feet; thence run South 420 feet; thence run West 30 feet to point of beginning, together with all improvements located thereon and rights thereto belonging.”

In all other respects, the judgment from which appealed is affirmed at defendants’ cost, including cost of this appeal.

On Rehearing.

AYRES, Judge.

The facts and issues are stated in our original opinion. Appellants contend we erred (1), in not reforming their deed to conform to the description of the property allegedly intended to have been acquired by them and as was intended to have been sold by appellee to appellants’ predecessors in title; (2), in not dividing the costs between appellee and appellants, and, (3), in the alternative, in not permitting them to remain in possession of the property in dispute until they are reimbursed the value of the improvements placed thereon by them.

Appellee, in his brief, contends that he should be permitted to elect whether he will keep the aforesaid improvements and pay appellants for them or compel their removal.

First, directing our attention to appel-lee’s contention, it will be noted that the judgment of the district court condemned appellee to reimburse appellants the sum of $425 for the improvements placed by them upon said property. An election as contended for by appellee was not provided for in the judgment rendered. Appellée did not appeal.. That issue was not preserved in his answer to the appeal taken by appellants and it, therefore, cannot be raised in brief on a rehearing. It is neither timely nor properly raised here.

For a proper understanding of the aforesaid contentions made by appellants, a brief restatement of a few of the pertinent facts appears to be all that is necessary. The record discloses that plaintiff was the owner of the SE}4 of the SW)4, Section 19, Township 23 North, Range 10 West, Webster Parish, Louisiana. Pie sold various lots and parcels thereof to sundry persons, including appellants’ authors in title, as well as one M. A. Curtis. Curtis acquired a tract adjoining appellants’ property on the west. All the deeds had a common error due to a mistake in the location of the southwest corner of said governmental subdivision, which was designated in all of them as the starting point. After these deeds were executed and filed for record, a survey was made wherein it was determined that the southwest corner of the aforesaid SE}4 of the SW*4 was located 30 feet west of the point, wherein it was supposedly located at the time the deeds were executed. The lots and parcels were measured and staked out from a point referred to as constituting the southwest corner of said 40, but which, in reality, was 30 feet east thereof. When these errors came to light, plaintiff offered to all the parties concerned correction deeds so that their deeds would correctly describe the particular lot measured and staked out for and possessed by each of them. Appellants refused this offer, insisting upon possession of a lot as described in the calls of their title. Accordingly, they took possession of the east 30 feet of property then possessed by Curtis and supposedly until that time owned by him. In compensation for this loss, Curtis moved his possession west an equal distance on property theretofore supposedly owned by plaintiff. Accordingly, a new boundary was established between Curtis’s property and that of plaintiff. Therefore, plaintiff relinquished possession of a valuable lot or tract to Curtis because of defendants’ refusal to accept a correction deed and to amicably adjust their boundary with Curtis. Moreover, appellants took possession of the aforesaid strip, being 30 feet wide on the east side of the Curtis property and purportedly owned by him, and at the same time refused to relinquish possession to an equal strip on the east side of their property, which was not actually included in their title but which until that time was supposedly owned by them.

After this litigation arose, appellants contend, as a reason for their refusal of a correction deed, that plaintiff had no title to this 30-foot strip to the east of their property and that, consequently, plaintiff was in no position to reform their deed. This assumption of plaintiff’s lack of title was erroneous, as pointed out in our original opinion. Their position taken then is inconsistent with their contention now that they are entitled to a correction deed. By their action in forcing the adjacent owner and likewise plaintiff adjoining him on the west to move their possession, boundaries and fences 30 feet west and in causing plaintiff to part with possession of a valuable strip of his property to offset and compensate the loss to Curtis due to the aforesaid action of appellants, appellants cannot now in good conscience insist upon a correction deed. They are thus barred and precluded from such insistence by their own acts.

Therefore, our review and reconsideration of this record has produced no change in our conclusion as to this issue nor as to the assessment of costs. The reasons for the conclusion as to the costs are clearly and adequately stated in our original opinion.

Appellants’ third contention relative to retention of possession of the property, the subject of this litigation, until they are reimbursed the value of the improvements placed thereon by them is correct and should be sustained. LSA-C.C. Art. 3453 provides in this connection as follows:

“The rights, which are peculiar to the possessor in good faith, are:
* * *
“2. The right which such a possessor has, in case of eviction from the thing reclaimed, to retain it until he is reimbursed the expenses he may have incurred on it”.

Pertinent is the expression of this court in Gregory v. Kedley, 185 So. 105, 108:

“Pursuant to the quoted codal provisions defendant, as a possessor in good faith, is entitled to be paid the value of the improvements, or $800; and also entitled to retain possession of the premises, without the payment of rent, until reimbursement of such sum, together with the taxes paid by her. Roussel v. Railways Realty Co., 165 La. 536, 115 So. 742; Eddins v. Giles, La.App., 142 So. 266.”

No claim was made for any adjustment or reimbursement of taxes.

Accordingly, our original decree is amended by permitting appellants to retain possession of the property involved in this litigation until they shall have been reimbursed for the improvements placed thereon by them, and, as thus amended, our original decree is reinstated and made the final judgment of this court.

And it is so ordered.


author: LOTTINGER, Judge.

text:
    Sidney BROUSSARD et ux. v. Walter BROUSSARD et al.
    No. 4116.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 23, 1956.

      Peter C. Piccione, Joseph L. Piccione, Lafayette, for 'appellants.
    Davidson, Meaux, Onebane & Nehrbass, Lafayette, for appellees.
   LOTTINGER, Judge.

Plaintiffs' appeal from judgment dismissing their suit as against defendant insurer, Traders and General Insurance Company, upon an exception of no cause of action. Since no objection was made to admission of the evidence, it was properly taken and considered.

Suit was dismissed as against the insurer based upon the alleged breach of the “cooperation clause” by its insured, code-fendant Walter Broussard. The pertinent' provision of the cooperation clause in the policy issued by defendant insurer to Walter Broussard (and covering operation of the 1948 Dodge in which plaintiffs were injured while riding as passengers) is:

“The insured shall cooperate with the company, and upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the' attendance of witnesses, and in the conduct of suits.”

This damage suit arose from an accident of December 4, 1953, when the Brous-sard Dodge .collided with a lj^-ton truck, which had made a left turn across U. S. Highway 90 into the former vehicle’s traffic lane.- The driver of the truck suffered severe burns and died shortly thereafter.

Immediately after the, accident, the insured (Walter Broussard, codefendant) who had been driving his own car, informed the investigating policemen that the accident occurred when the truck suddenly turned just 15 feet in front of him across his traffic lane, when Broussard was proceeding at a speed of 40-45 mph. To the same effect was his oral statement the following day to his insurance agent. This version was repeated in an unsworn written statement taken on December 7, 1953, by an adjuster of his insurer, codefendant herein.

Broussard now states that these statements were false and given from a fear of prosecution for negligent homicide or reckless driving, and at the suggestion or with the consent of his brother, Sidney Brous-sard, plaintiff herein.

Broussard insisted on the trial of the exception on March 11, 1955, that the version given by him then and by ex parte depositiqn taken by his own insurer on December 28, 1954 (at which Broussard was not represented by. his. own counsel) was instead the correct version. These latter accounts in general indicate his speed prior to the accident to be 60-65 mph and that the truck commenced its turn when Brous-sard was approximately 300 feet from the point of the accident. Of course, this-latter version (unlike the initial one) makes it more likely that Broussard was guilty of contributory negligence, and that therefore. Broussard’s insurer is liable to plaintiffs, Broussard’s brother and sister-in-law.

In addition, on December 8, 1953, Brous-sard gave a written statement to plaintiffs’’ attorney which, while 'somewhat vague, indicates a speed of 60 mph slowing to 45 mph just before the impact, and somewhat greater opportunity to observe the truck’s left turn across his path than the statement given to his insurer’s adjuster the previous day. His insurer did not learn of this statement nor of his change of position until December of the following year after suit was filed when Broussard was requestr ed to contact insurer’s counsel for the preparation of the defense of the . case which was filed and the deposition above referred to taken on December 28, 1954 followed. Broussard explains his greater frankness on the latter occasions by stating he was not afraid such latter statements would be used in criminal prosecutions against him. Despite Broussard’s reason for making a change in the latter statements or deposition, we must not lose sight of the fact that on December 7, 1953 he made a written statement to an adjuster of his insurer and on the following day December 8, 1953 made an entirely different or contradictory written statement to plaintiffs’ attorney who was a total stranger to him.

The District Court sustained the exception, holding that the inconsistent versions of the accident constituted a breach of the cooperation clause, and further that despite their denials, the insured was cooperating with plaintiffs (his brother and sister-in-law) in the preparation of their claim against his own insurer. ■

Our brothers of the Orleans Court of Appeal recently summarized the Louisiana rule concerning the defense of non-cooperation in Elba v. Thomas, La.App., 59 So.2d 732, at page 734:

“ ‘The defendant insurer urges a separate and distinct defense against plaintiff’s recovery, in that the insured violated the assistance and cooperation clause of its policy contract. There is no proof of such violation. Nor could it be urged that the insured, had he testified favorably for his wife, would have violated this clause. As was held in Levy v. Indemnity Insurance Co., La.App., 8 So.2d 774 and cited in State Farm Mutual Automobile Ins. Co. v. Koval, 10 Cir., 146 F.2d 118, the purpose of the cooperation clause is to require the insured to disclose all the facts within his knowledge, and otherwise aid the company to determine its liability under the policy. It is not the obligation of an insured to assist the insurance company to defeat its liability. The obligation of the company is to pay the damage if liable, and not to refuse to pay it, regardless of liability. Further the lack of cooperation that would defeat recovery miust be in some substantial and material respect that results in prejudice to the insurer, * * * (Italics ours).

In this suit by a wife against her husband’s insurer, the defense of non-cooperation was not allowed, despite the husband-insured’s misstatement — “confusion,, for whatever cause” — of the location of the accident with reference to the intersection. Similarly, in Lindsey v. Gulf Insurance Co., La.App., 7 So.2d 757, the defense of noncooperation was disallowed when an initial deliberate misstatement was corrected in advance of'trial so as not to prejudice the defense of the cause. In Levy v. Indemnity Insurance Co., La.App., 8 So.2d 774, 776 (certiorari denied), it was held that -the willingness of the named and additional assured to furnish all information to their plaintiff-brother’s counsel did not constitute failure on the part of the assured to cooperate. In ‘ a plaintiff-passenger-wife’s suit against her husband’s insurer, this Court itself noted that maintaining normal social intercourse and necessarily discussing the accident and the resultant lawsuit does not constitute “collusion,” Scarborough v. St. Paul Mercury Indemnity Co., La.App.,1 Cir., 11 So.2d 52, at page 55.

Thus the rule in Louisiana, and also the majority rule elsewhere, is that to defeat recovery the misrepresentation must be material. We find in 5 American Jurisprudence verbo Automobiles Section 545 the following:

“Co-operation by Insured. — Sometimes there is included in liability or indemnity policies a clause, positive in its character, providing that the assured shall co-operate with and assist the insurer in resisting claims, etc., or, more particularly, that he shall aid in securing information, evidence, and the attendance of witnesses, in effecting settlements, in prosecuting appeals, etc. A clause of this character is'a perfectly reasonable one, framed with the object of protecting the insurance company against the risk of collusion between the assured and -persons claiming damages for alleged torts, and is a material condition of the policy, the violation of which by the assured forfeits his right to claim indemnity under the policy. The insured must, therefore, comply with such provision, as for a breach thereof in some material respect, the insurer is justified in withdrawing from the defense of the action brought against the assured and canceling the protection to him.
“On the other hand, co-operation may be •■excused as a matter of law if improperly demanded. The assured ‘is not to be a mere puppet in the hands of the insurer, he is under no obligation to permit a sham defense to be set up in his name, nor can he be expected to .verify an answer which he does not believe to be true; he cannot evade personal responsibility, and hence he is not bound to yield to any demand which would entail violation of any law or ethical principle; but he cannot arbitrarily or unreasonably decline to assist in making any fair and legitimate defense.’ ”

We find in 29 American Jurisprudence verbo Insurance the. following:

“789. Generally. — In liability insurance policies, provisions are usually to be found requiring the co-operation and assistance of the insured in resisting claims, etc., or, more particularly, requiring that he shall aid in securing information, evidence, and the attendance of witnesses, in effecting settlements, in prosecuting appeals, etc. Such a provision is commonly called a ‘co-operation clause.’ It is in the nature of a condition precedent to liability on the insurer’s part; and a breach of the provision by the insured constitutes, in the absence of a waiver by or estoppel of the, insurer, a defense to liability on the policy, even though it does not appear that harm resulted to the insurer from such breach. To constitute a breach of a co-operation clause by the insured, however, there must be a lack of cooperation in some substantial and material respect; a technical or inconsequential lack- of co-operation or a misstatement to the insurer is immaterial in such respect. A co-operation clause is breached, and the insurer is released from its contract, by the unjustifiable refusal of the insured to permit the insurer to make any defense or by the arbitrary refusal on the part of the insured to sign or execute a pleading legally required in maintaining a valid and available defense. The rule is otherwise where the insurer requests the insured to plead and rely upon a ground of defense which does not in fact exist. Co-operation by the insured is excused if improperly demanded by the insurer, and does not include assistance in a sham defense by the insurer; nor can the insured be required to testify falsely, or favorably to the interests of the insurer. Furthermore, there is no breach of the co-operation clause merely because the insured, by legitimate means, and after a full disclosure of -the facts surrounding an accident, seeks to induce the insurer to settle a claim therefor against the insured, or because the insured disclosed to the person injured or his representative the fact that he carries insurance. It has been held that a lack of good faith is not to be inferred merely from relationship between the insured and the person injured.
“790. Duty to Disclose Information. —A co-operation clause in a liability insurance policy requires that there .shall be a fair, frank, and substantially full disclosure of information reasonably demanded by the insurer to enable it to prepare for, or to determine whether there is, a genuine defense. In such respect, refusal of a druggist who is insured against liability for mistakes to state the details of a mistake on account of which he is sued, unless the insurer will undertake in any event to pay any judgment which may be recovered against him, is such a breach of a condition in the policy requiring his co-operation and assistance as to vitiate the policy. While a co-operation clause may require the insured, when requested for such information, to give full particulars of the accident, he need not go into unnecessary details or make an exhaustive investigation of the circumstances attending the accident.”
“792. Making of False Statements to Insurer. — An unintentional and accidental mistake in a statement of facts, made by the insured under a liability policy, especially if afterward seasonably corrected, does not establish such a lack of co-operation as will create a defense for the insurer. Moreover, the mere inadequacy or untruthfulness of a statement made by the insured to the insurer, as to the circumstances of an accident, does not of itself necessarily constitute a breach of a co-operation clause. However, there is a breach of a co-operation clause where the insured untruthfully or collusively assumes liability for the accident, or misrepresents the facts to the prejudice of the insurer. Likewise, and although there is authority to the contrary where it does not appear that information, favorable to the defense, given by the insured was intentionally false, it is generally held that it may be a breach of a co-operation clause where the insured, in fact to blame for an accident, gives the insurer an account thereof favorable to the defense, thereby misleading the insurer to its prejudice, especially where the insured, in the trial of the action against him, admits responsibility for the accident.
“793. Modification or Repudiation of Prior Statements to Insurer. — The mere fact that the insured modifies or repudiates statements as to the accident and Attending circumstances favorable to the defense does not necessarily constitute a breach of a co-operation clause of a liability policy, but such modification or repudiation may constitute a breach if fraudulent or a result of a collusive attempt to help the injured person.
“794. Variance between Statements and Subsequent Statements or Testimony. — In determining whether a variance between statements made to an insurer and subsequent statements or testimony constitutes a failure to cooperate with the insurer, consideration should be given to the extent of such variance or discrepancy, since a mere discrepancy in minor detail or an honest mistake between the several statements of the facts surrounding the accident is not sufficient to avoid the policy, whereas a material, intentional, or fraudulent variation does effect a failure to co-operate.”

The court must be alert to. protect insurers in circumstances where close family relationship or association tend to ally the sympathy of the insured with those to whom the insurer may be liable; and, normally, in evaluating credibility such factors are properly taken into account.

On the other hand, the courts must recognize that insurance policies protect not only the insured, but the general public, and insurers should not escape their liability except through conduct on the part of their insured which materially prejudices them.

With regard to the instant case the only witnesses who testified were the insured driver, and the two plaintiffs, passengers in- the car involved in the accident; the truckdriver, sole occupant of the other vehicle, is dead, and his testimony is not available. The District Court refused to believe the testimony of these witnesses, who denied discussing the insurance claim or accident together at any length, and further from this evaluation of the credibility of the witnesses found that there was “collusion” between the witnesses; which must amount to a factual finding that the second, or less favorable to the insurer, version of the accident was the false one, and was designed to enable the insured’s brother and sister-in-law to recover against his insurer.

We do not believe this factual finding to be manifestly erroneous in the special facts and circumstances of this case, where the sole surviving witnesses are .all so closely related and the insured has in .actuality an interest and sympathy adverse to his insurer, and where no other evidence was produced to corroborate that the second version was the true one. For in such case, the conduct of the insured — sole witness other than plaintiffs — in testifying to an untruthful unfavorable version of the accident has indeed materially prejudiced the insurer’s defense of the claim.

For the above and foregoing reasons, the judgment of the lower court is affirmed; since this suit is in forma pauperis, plaintiffs-appellants will not be assessed with the' costs hereof.

Judgment affirmed.


author: PER CURIAM.

text:
    Eleanor C. ABNEY, Petitioner, v. William Herbert ABNEY, Sr., Respondent.
    Supreme Court of Florida. Division B.
    Jan. 25, 1956.
    J. Boyd De Loach of De Loach, Freeman, Matthews, iNew Smyrna Beach, for petitioner.
    R. P. Hamlin, Tavares and Truman G. Futch, Jr, Leesburg, for respondent.
   PER CURIAM.

In a suit for divorce and child custody between the parties here involved, the Honorable T. G. Futch, as presiding judge, on 17 November 1953, entered a final decree of divorce finding the equities to be with the plaintiff, Eleanor C. Abney,' and against the defendant William Herbert Ab-ney, Sr, and awarding the exclusive custody, management and control of the minor children to the mother, and providing financial benefits for their support. On 30 October 1955, the father, Will-iam Herbert: Abney, Sr, presented to Honorable T. G. Futch, Circuit Judge, a petition signed by the father’s lawyer, not signed by the father, but verified by one Elizabeth A. Geiger as agent of the father, alleging that the mother had become physically and mentally incapable of protecting the interest and well being of said’minor children, and that there was danger that such children would be removed by the mother from the State of Florida and jurisdiction of the court, and which prayed that the court enter its order modifying said final decree insofar as it related to the .custody, care and control of said minor children, and that the mother be restrained from removing said children from the State of Florida, pending the final disposition of this cause. There was no explanation for the failure of the father to verify the petition, nor of the reason, extent and nature of the agency of Elizabeth Geiger.

At a hearing held on Sunday, 30 October A.D. 1955, without any notice to the mother and under a petition which failed to allege that notice would accelerate injury or action resulting in immediate and irreparable damage, and without providing any other excuse or reason for failure to give notice, the court entered an order providing that the “Juvenile Officer of Lake County, Florida, Kenny Pearce, be and he is hereby directed to take custody of the above named children and care for them as may seem to. their best interests pending the final disposition of this cause.”

It is this last order of 30 October 1955, now before us for review.

Obviously, the order did not dispose of the petition for modification, nor was it responsive to that part of the petition which prayed for a temporary restraining order, but stripped the mother of the custody of her infant children under a decree nearly two years old, without notice or explanation for failure to give notice. See F.S.A. § 63.73.

Certiorari is granted and the order of 30 October 1955, under the circumstances here present, was erroneous and it is quashed.

DREW, C. J., and THOMAS, ROBERTS and O’CONNELL, JJ., concur.