text:
    230 La. 78
    William ABRAHAM v. Elvira Monnerjahn ABRAHAM.
    No. 42422.
    Supreme Court of Louisiana.
    May 7, 1956.

      Clarence Dowling, New Orleans, for appellant.
    Hammett & Bertel, New Orleans^ for ap-pellee.
   McCALEB, Justice.

This is a suit by a husband against his wife for an accounting and settlement of the community of acquets and gains which was dissolved by a decree of separation from bed and board on May 15, 1953. The trial court, after hearing evidence in support of the respective claims of the parties, awarded judgment in favor of plaintiff for $1,011.46 and dismissed defendant’s recon-ventional demand. Plaintiff is appealing from the judgment and defendant has answered, reiterating the claims urged by her below.

Plaintiff is the second husband of defendant. She was first married to John W. Schroeder, who died on July 17, 1945, being survived by defendant and a son, Curtis J. Schroeder, issue of the marriage and of age. Mr. Schroeder’s succession, consisting entirely of community property, was opened in the Civil District Court and defendant, as surviving spouse in community, was placed in possession of an undivided one-half interest of all of the property and was recognized as usufructuary of the remaining one-half. The son, Curtis J. Schroeder, was recognized as the sole heir of his father and was placed in possession of an undivided one-half interest, subject to his mother’s usufruct. Included in the assets of the succession was a going concern, known as “Helshro Furniture and Appliance Company” (hereinafter referred to as Helshro), an unincorporated mercantile business conducted by defendant and her late husband. Following his death, defendant continued to operate the business in the same manner as formerly, she being the general manager, credit manager, cashier and chief saleswoman of the enterprise. Her son was attending college during most of this period and has since become a professor at Louisiana State University.

Plaintiff and defendant were married on March 16, 1946 and lived together about seven years. On May 15, 1953, a judgment of separation from bed and board was rendered in favor of plaintiff which reserved the rights of both parties to all claims for community and separate property. During the existence of the community, defendant continued to operate Helshro for herself and her son. The business prospered in these years. At the time of her marriage to plaintiff, defendant’s share of the capital and undivided profits was valued at $l5,-954.53, while, at the dissolution of the community, the figure had increased to $46,-824.47.

The principal issue in the case involves the increase or amelioration of defendant’s share in the Helshro business during the marriage, plaintiff’s claim being that this increase, amounting to $30,869.94, inured to the community and that he is entitled to one-half of it, or $15,434.97. This contention is predicated to some extent on Article 2386 of the Civil Code but largely on Article 2408.

We have no difficulty whatever in resolving that Article 2386 of the Code, as amended by Act 286 of 1944, is without pertinence to this phase of the case. The increase of the valul of defendant’s interest in Helshro is not a fruit of her paraphernal property within the meaning of the law. See Daigre v. Daigre, 228 La. 682, 83 So. 2d 900 and authorities there cited.

We therefore pass on to a consideration of the applicability of Article 2408 of the Civil Code to the case. It provides:

“When the separate property of either the husband or the wife has been increased or improved during the marriage, the other spouse, or his or her heirs, shall be entitled to the reward of one half of the value of the increase or ameliorations, if it be proved that the increase or ameliorations be the result of the common labor, expenses or industry; but there shall be no reward due, if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade.” (Italics ours.)

Counsel for defendant proclaim that this Article is irrelevant to the increase in the value of defendant’s interest in Helshro for three reasons: first, because plaintiff had nothing whatever to do with the increase; second, because the increase resulted from the ordinary course of things, from the rise in value of the property or from the chances of trade, and third, that, inasmuch as Helshro is a commercial partnership, the increase in its value cannot be claimed for the community.

Considerable evidence was adduced below on the first proposition as to whether plaintiff rendered services having causal relation to the increase in capital and undivided profits of the enterprise. Plaintiff testified at length respecting his employment at the store as a salesman of appliances, a solicitor and a buyer (all without salary). His statement is corroborated by some witnesses but denjed by others. The judge resolved this conflict against plaintiff, holding that plaintiff’s connection with the business was “very vague and indefinite, and not very consequential”. By giving due weight to this finding, we will assume that plaintiff made no positive contribution to the enhancement in value of Helshro during the existence of the community. But this circumstance alone does not render Article 2408 inappropriate to the case for the reason that “the common labor, * * * or industry” referred to in the Article does not necessarily mean that the reward for the increase will not be given to a spouse who does not individually contribute his labor or industry. The phrase “common labor, * * * or industry” simply connotes community labor or industry as the word “common”, as used in the Civil Code, is synonymous with “community”. See Article 2334, defining separate and common property. Accordingly, it suffices, under Article 2408, that it be shown that the increase in the separate property has resulted from community labor or industry, that is, the labor of either spouse during the existence of the marriage. It was so decided in Succession of Ferguson, 146 La. 1010, 84 So. 338, where the increase in value of the deceased husband’s interest in a commercial partnership (a drug store) was held to fall to the community despite the fact that the wife contributed no direct part in effectuating the increased value.

In Beals v. Fontenot, 5 Cir., Ill F.2d 956, 960, the question was whether the community was entitled to the increase in value of certain corporate stock brought into the marriage by the husband, it being contended that, since the husband had served as a director and active officer of the corporation until his death, the increase was attributable to his labor and, therefore, became community property under Article 2408 of the Civil Code. The court denied this claim, holding, in accord with the view of the district judge, that, since the community had been adequately compensated by salary and dividends for the husband’s services to the corporation, the increase in the value of the stock could not be attributed to “ ‘the common labor, expenses or industry’ of the community.” Thus, the ruling rested on a determination of fact. Implicit in the decision is the assumption that, had it been shown that the husband’s efforts contributed to the increase in value of his stock, one-half of such increase would have been due the wife under Article 2408.

Hence, it is perceived that, if either husband or wife substantially contribute to the amelioration of the separate property of one of them during the marriage by his or her labor or industry, the spouse who does not own the separate property is entitled to the reward of one-half the value of the increase and it is immaterial whether the enhancement is attributable to his or her personal effort. The important circumstance is that the contribution must result from community labor, industry or expense.

Defendant’s contention that the increase of the capital and undivided profits of Helshro is “due only to the ordinary course of things, to the rise in the value of property, or to the chances of trade” is not substantial. It is clear that the growth and success of the business is chiefly due to the efforts of defendant, who has been in sole control of its management over the years, although there can be little doubt that general prosperity and inflationary values have played a prominent part in the accretion. However, this fact does not render Article 2408 of the Code less appropriate for, when it is shown that community labor, expenses or industry has provided an increase to the separate property, the burden shifts to the owner of the separate property to rebut this proof and affirmatively establish that the increase is due only to the ordinary course of things, rise in values or chances of trade.

Finally, assuming that Helshro is a commercial partnership between defendant and her son (although we have some doubts on this score), there is no .merit in defendant’s contention that such circumstance precludes the application of Article 2408 of the Code. The legal status of the business has no relevancy whatever; the only inquiry is whether the value of the separate property of a spouse, whether it be in the form of stock or otherwise, has been enhanced by the labor or industry of the community. Succession of Ferguson and Beals v. Fonte-not, supra.

We accordingly conclude that plaintiff is entitled to recover from defendant the sum of $15,434.97, or one-half of the amount of the increase in value of defendant’s share of Helshro during the existence of the community.

The inventory taken at the dissolution of the community exhibits cash balances in various bank and homestead accounts in a total amount of $34,250.20. Some of the accounts were joint accounts between defendant and her son, some were in her name alone and one was in defendant’s name for her son. Plaintiff contends that, of this total, $11,345.72 was acquired by defendant during the existence of the community and is community property. Defendant, on the other hand, asserts that of the total amount only $1,683.10 belongs to the community, this being the partial balance in a checking account plus the amount of rent and interest collected by defendant during the period from March 16, 1946 to January 17, 1950, on which latter date defendant executed an affidavit in accordance with Article 2386 of the Civil Code, the effect of which was to reserve for her own use and benefit the fruits of her parapher-nal property from that date until the dissolution of the community. In other words, the contested amount as to these items is $9,662.62 (the amount claimed as community funds by plaintiff less the amount conceded to be community funds by defendant).

'Starting out with the presumption that the entire sum of $34,250.20 belongs to the community, in accordance with Article 2405 of the Civil Code, we will examine to what extent defendant has been successful in rebutting this presumption. To do so it will be necessary to inspect each of the aforementioned accounts separately.

An account in the name of Mrs. John W. Schroeder for Curtis Joseph Schroeder in the Union Savings and Loan Association showed a balance of $9,291.31 at the dissolution of the community. This account was originally opened on December 31, 1931, and it was adequately proven that all deposits made therein during the existence of the community were from the son’s own funds. Therefore, none of this balance can be considered a part of the community.

We next consider the joint account in existence at the Treme Market Branch of the National Bank of Commerce, in the names of Mrs. John W. Schroeder or Curtis J. Schroeder. At the dissolution of the community this account showed a balance of $7,493.66, while at the commencement of the community the figure was $5,-630.04. It appears conclusive from a breakdown of this account that half the account is the property of defendant and half belongs to defendant’s son, Curtis J. Schroeder. An examination of the account reveals no withdrawals, and the only items deposited during the existence of the community were bond interest, interest on the account and rent. Since it cannot be said that there has been any real commingling of separate and community funds here, we conclude that the only items in this account that fall into the community are the rents and interest deposited prior to January 17, 1950, the date defendant executed the instrument reserving to herself the fruits of her separate property. This figure, shown to be $794.35, falls into the community. Defendant’s claim that this amount should be offset by certain expenses allegedly applicable to the rents collected is not tenable since no proof was offered to overcome the presumption that such expenses were defrayed by community funds, rather than by defendant’s separate funds.

The next account to be examined, also joint in the names of defendant and her son, is in the Broad Street Branch of the Whitney National Bank. Defendant’s share of the account was $7,512.46 when the community began and was $8,236.02 when the community was dissolved. The only deposits made in this account, other than rents and interest, totalled $1,400, all withdrawn from Helshro and charged to Curtis J. Schroeder’s drawing account. The only withdrawal was by Curtis J. Schroeder for $2,400. Thus it is clear that there was virtually no commingling in this account by defendant of separate and community funds. Accordingly, the only items belonging to the community are the rent and interest deposits made prior to January 17, 1950, or $439.71.

An account in the Union Savings and Loan Association in the name of Mrs, Elvia M. Schroeder showed a balance at the dissolution of the community of $977.49. An inspection of this account reveals a considerable commingling of separate and community funds, deposits in the amount of $1,645.54 being made from a source described simply as “Other”, in addition to the deposits made of rents and interest. We conclude that the entire balance is to •be regarded as community property.

A savings account was opened on July 7, 1950, in the Third District Homestead Association in the name of Mrs. Elvia M. Schroeder. It showed a balance of $250.52 at the dissolution of the community, all of which must be considered community funds in view of the commingled nature of the account. There were numerous deposits of community funds made in this account, including $530.63 from a source described as “Other” and $2,000 taken from Helshro.

Also to be considered- community property are a $762.47 balance in a checking account in defendant’s name in the Broad Street Branch of the Whitney National Bank and a $2.71 balance in a savings account at the same bank, both in esse at the dissolution of the community.

The record discloses that on February 7, 1952,, defendant withdrew a total of $9,000 from the two homestead accounts ■ (i. e., $5,000 from the Union Savings and Loan Ass’n and $4,000 from the Third District Homestead Ass’n) and, on February 8, 1952, made a loan to Mr. and Mrs. Claude A. Brady in the amount of $10,000, secured by a real estate mortgage. Plaintiff contends that this loan was effected from community funds and that, since only $550 of the principal had been paid at the time the community was terminated, the value of the note is $9,450 and this amount should be considered a community asset. Defendant, on the other hand, asserts that only $1,000 of the $10,000 was taken from community funds and further claims that at the dissolution of the community only $1,900 was still due on the note, and that therefore the interest of the community in this note is only one-tenth of $1,900, or $190. The trial judge sustained defendant’s view.

We think that the judge erred in holding $9,000 of the loan to have been made with defendant’s separate funds. As we have heretofore observed, separate and community monies were so commingled in the-two accounts from which the $9,000 was withdrawn as to necessitate a finding that any withdrawals made from either of these accounts during the existence of the community were from community funds. We therefore hold the entire $10,000 loan to have been made with community funds.

We also believe that the judge erred in finding that all but $1,900 of this loan was paid prior to 'the dissolution of the community. The mortgage instrument specified monthly payments of $50, and there is no believable evidence to substantiate defendant’s position that $100 per month was paid by Brady, plus a $7,000 payment allegedly made in October of 1952. Brady’s testimony as to how he came by such sums was extremely tenuous. In addition, if such amounts were, in fact, paid, surely defendant would have some record of it. Yet the only ■ item offered in evidence to reinforce these claims was a small receipt book indicating the alleged payments. We are impressed neither by this book nor by the testimony and therefore conclude that the note and mortgage represented a community asset in the amount of $9,450, as contended by plaintiff.

We recapitulate our findings in the following table (exclusive of plaintiff’s claim for the one-half interest in the increase of value of defendant’s interest in Helshro).

Community assets in esse at dissolution of community.

Fruits from defendant’s separate property prior to Tan. 17,

1950 . $ 1,234.06

Union Savings and Loan balance. 977.49

Third District Homestead balance. 250.52

Whitney National Bank checking account balance. 762.47

Whitney National Bank savings account balance. 2.71

Brady Mortgage Note. 9,450.00

$12,677.25

One-half due plaintiff..... $ 6,338.63

We shall now proceed to examine defendant’s claims as enunciated in her answer to plaintiff’s appeal, all of which were denied by the trial judge.

Defendant’s first claim is for one-half the value of a 1951 DeSoto automobile. Plaintiff admitted the purchase of this automobile in June, 1951, and offered no adequate evidence to rebut the strong presumption that anything purchased during the marriage belongs to the community. We therefore hold this automobile to be a community asset and defendant is entitled to one-half the proceeds from its sale.

The inventory also disclosed a checking account in plaintiff’s name at the Louisiana •Savings Bank & Trust Co. having a cash balance at the dissolution of the community in the amount of $1,513.01. This account was opened on July 1, 1946, with a deposit of $9,906.36, this amount having been withdrawn by plaintiff that day from a joint account at the same bank in the names of Mr. or Mrs. Abraham. There can be no serious contention that the balance of $1,513.01 is anything other than community property. Therefore, we hold defendant to be entitled to judgment for one-half the amount of this balance, or $756.50.

Defendant has claimed a one-half interest in certain government bonds allegedly purchased by plaintiff during the marriage. However, proof of the purchase or the identity of the bonds or other circumstances connected with the acquisition is very vague and unsatisfactory. The best that we are able to gather from the indefinite testimony is that plaintiff was the owner of some $10,000 in U. S. government bonds at the time of his marriage to defendant and he maintains that these bonds were still in his possession when the separation took place. While under cross-examination, he admitted that he purchased approximately $3,000 worth of bonds during the marriage but, by his statement that the only bonds he had in his possession at the dissolution of the community were the bonds he owned prior to the marriage, it necessarily would seem to follow that he is maintaining that he sold during the marriage the $3,000 in bonds he admittedly purchased. Plaintiff offered to produce the bonds in court so that positive identification could be made but defendant refused the offer. In view of this refusal, we are constrained to reject defendant’s claim as to the bonds as she has otherwise failed to establish with any degree of certainty that plaintiff had in his possession at the dissolution of the community any specific bonds purchased during the existence of the community.

Defendant finally asserts that she is entitled to judgment for $4,213.99, this being the amount allegedly lent plaintiff by defendant from the latter’s separate funds and never repaid. In considering this claim, it is necessary to examine the circumstances surrounding the purported loan. On March 19, 1946, a joint account was opened in the Louisiana Savings Bank & Trust Co. in the names of Mr. or Mrs. William Abraham, the initial deposits totalling $10,111.31. Defendant maintains that she put up $5,000 of this sum while plaintiff contends that the entire amount was advanced by him. On May 17, 1946, defendant withdrew $5,-000 from this account. On May 28, 1946, she gave plaintiff a check for $5,050 which he deposited in the joint account on May 31, 1946. On July 1, 1946, plaintiff transferred $9,906.36 from the joint account to his own account in the same bank, which latter account we have already considered. It is defendant’s argument that $4,213.99 of the $5,050 “lent” plaintiff came from her separate funds and has never been repaid.

This claim is without merit. There is nothing to indicate that the $5,050 was a loan rather than a replacement (plus a $50 “fine”, according to plaintiff) for the $5,000 previously withdrawn by defendant from the joint account. There is no evidence of plaintiff’s indebtedness, other than defendant’s testimony, and the entire circumstances of this joint account, both as to its inception and its administration, are far too nebulous to form the basis of any such indebtedness as alleged by defendant.

For the reasons assigned, the judgment appealed from in favor of plaintiff on the main demand is amended by increasing the amount thereof to $21,773.60, with legal interest thereon from judicial demand until paid. In all other respects, the judgment is reversed and it is now ordered that there be judgment in favor of defendant and against plaintiff on the reconventional demand for the full sum of $756.50, with legal interest thereon from judicial demand until paid. It is further ordered that defendant have judgment recognizing her as the owner of an undivided one-half interest in the 1951 DeSoto automobile in possession of plaintiff. All costs incurred in this suit are to be borne equally by the opposing litigants.

      . She claims that, after her first husband’s death, she waived .her rights as usufructuary and that the Helshro business was conducted as a commercial partnership by verbal agreement between her son and herself.

      . It declares, in part: “The fruits of the paraphernal property of the wife, * * fall into the conjugal partnership, * * unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. * * * ”

      . The syllabus written by the Court reads: “Where a married man, living under the regime of the community, is a partner in a business which was started before his marriage and his interest in which is part of his separate estate, and where, during a series of years, a large proportion of the profits of the business have been reinvested in, thereby increasing and enhancing the value of, the capital and stock in trade, the surviving widow in community, claiming in her own right and as the inheritor of her husband’s share in the community property, is entitled to recover from his separate estate to the full extent of such enhancement.”

      . It is well settled that, where community funds are used to improve the separate property of one of the spouses, the other spouse is entitled to recover one-half of the enhanced value of the property resulting from the use of community funds under Article 240S of the Civil Code. Depas v. Riez, 2 La.Ann. 30; Succession of Boyer, 30 La.Ann. 506; Dillon v. Freville, 129 La. 1005, 57 So. 316; Succession of Goll, 156 La. 910, 101 So. 263; Peters v. Klein, 161 La. 664, 109 So. 349; Succession of Singer, 208 La. 463, 23 So. 2d 184 and Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502.

      . Compare Beals v. Fontenot, 5 Cir., 111 F.2d 950, where, as we have stated, the Court found that the husband did not contribute to the increase in the value of the stock separately owned by Mm in the corporation because the community was adequately compensated for the services he rendered by the salary paid him and dividends received. It is to be observed that this resolution by-passes the vital question as to whether the community service of the husband contributed to the enhancement in value of the stock. Applicability of Article 2408 of the Civil Code is dependent on this crucial factor and not upon whether the community has been adequately remunerated by the salary and dividends received.

      . It should be noted that the written affidavit executed by defendant on January 17, 1950, in accordance with Article 2386 o£ the Civil Code, reserved 'the
        fruits from her separate property hut this cannot be held to' include the ryith-drawn earnings from Helshro, which fall into the community in accordance with Article 2334 of the Civil Code as interpreted by this Court in Houghton v. Hall, 177 La. 237, 148 So. 37 and Succession of Howell, 177 La. 276, 148 So. 48. Also Charles Lob’s Sons v. Karnofsky, 177 La. 229, 148 So. 34.

      . He claims that his father-in-law, who was not produced, lent him the money without interest or written evidence of indebtedness.

      . Computed from the deposits made in the two non-commingled savings accounts [i. e., Treme Market Branch of the National Bank of Commerce and the Broad Street Branch of the Whitney National Bank).


source: Caselaw Access Project

author: MOISE, Justice. PER CURIAM. HAMITER, Justice

license: Public Domain

text:
    230 La. 101
    Mrs. Nellie STEVENS v. Melvin F. JOHNSON.
    No. 42539.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied May 7, 1956.

      Johnson & Morelock, Malcolm W. Feist, Shreveport, for defendant-relator.
    Hobbs & Yeates, Minden, for plaintiff-respondent.
   MOISE, Justice.

In the exercise of our supervisory control, Article VII, Sec. 11, Constitution of 1921-LSA, we granted writs to review a judgment of the Court of Appeal, Second Cir--cuit, in favor of plaintiff, Mrs. Nellie Stevens, which reversed a judgment of the Twenty-Sixth Judicial District Court for the Parish of Webster in favor of the defendant, Melvin F. Johnson.

More time is sometimes spent in the battle of persuasion than in the adoption of the rules of guidance shown in the express law of the State.

The plaintiff, Mrs. Nellie Stevens, brought an action to be declared the owner of a certain piece of property described as follows:

"NWy4 of the Nwy4 -of Section . (19), Township (17) North, Range (10) West, Webster Parish, Louisiana, containing 3814 acres more or less.”

Plaintiff and defendant both trace their title to tax sales, and it is necessary that we know the facts to which we can then apply the law.

In 1936 Nelson Burk was the owner of the property in question.

The property was put up for sale in 1937 for unpaid 1936 taxes. A man named Campbell purchased it in the name of his brother, Travis Campbell, and properly recorded the deed. The Campbells did not go on the property during the year 1937, nor did they exercise any act of ownership or possession over their property.

The property was again put up for sale in 1938 for unpaid 1937 taxes. Notice of tax sale was sent to Nelson Burk, who was then not the record owner of the property. Metz Abbitt purchased the property with this infirmity and immediately recorded his deed.

Metz Abbitt, who testified that he collected rent from Burk but which proof of collection was not convincing, sold this property to Iva E. Johnson on January 6, 1943. The deed was recorded on the same day. This sale was made a little less than five years after Abbitt’s purchase, but more than five years after purchase in the flame of Travis Campbell.

On August 31, 1945, Iva E. Johnson sold the property to the plaintiff, Mrs. Nellie Stevens, and since that time she and her vendors have exercised civil possession.

On March 11, 1946, Travis W. Campbell quit-claimed the property to Melvin E. Johnson, who thereafter exercised physical possession of the property.

In his answer the defendant urged that since notice of the tax sale in 1938 was sent to Nelson Burk instead of to the record owner, Travis Campbell, the sale to Metz Abbitt was null. He also pleaded the prescription of five, ten and thirty years.

The trial judge held that since Nelson Burk (the record owner in 1936) remained on the property until his death in 1946, such constituted possession which suspended the peremption set forth in Article X, Sec. 11 of the Constitution of 1921, which reads:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. * * * ”

His Honor below lost sight of the fact that Nelson Burk was not possessing as record owner; he was merely staying on the property at the ill-will of Metz Abbitt, who was endeavoring to have him evicted. Therefore, we agree with the Honorable Court of Appeal, Second Circuit, that the above ruling made by the trial judge constitutes manifest error.

Travis Campbell lost the property by the 1938 tax sale. Since he never possessed the property nor paid any taxes thereon, he had no further right to it in 1943. Therefore, at no time was peremption suspended as to Metz Abbitt.

“This constitutional peremption applies to all tax sales except those specifically excepted therein and those where the tax debtor remains in corporeal possession of the premises. * * * This constitutional provision announces the public policy of this State to set at rest tax titles once and for all.” King v. Moresi, 223 La. 54, 64 So.2d 841, 842.

In 1943 the infirmity in Abbitt’s title was cured by the peremption of five years. Meshell v. Bauer, 215 La. 619, 41 So.2d 237; Succession of Terrell v. Buckner, La.App., 176 So. 666; Prampin v. Southern Chemical Works, Inc., La.App., 53 So.2d 210; Ward v. South Coast Corporation, 198 La. 433, 3 So.2d 689.

Metz Abbitt’s registry of his deed and his payment of taxes constituted civil possession, which was sufficient possession of the property. Cortinas v. Murray, 224 La. 686, 70 So.2d 589.

On application for a rehearing in the Court of Appeal, Second Circuit, the defendant filed an exception of no cause or right of action, and the major portion of his contention in this Court is directed to that exception. He contends that since plaintiff was a married woman she was lacking in capacity to prosecute a petitory action involving title to property, inasmuch, as property acquired by either spouse during the existence of a marriage is presumed to fall into the community, to which only the husband, as head and master of the community, is authorized to institute suit. We do not construe this exception as peremptory. It is an exception of want of capacity to sue, which, being dilatory, must be filed in limine litis. Article 332 of the Code of Practice reads:

“Dilatory exceptions are such as do not tend to defeat the action, but only to retard its progress; declinatory exceptions have this effect, as well as the exception of discussion opposed by a third possessor, or by a surety, in an hypothecary action, or the exception taken in order to call in the warrantor.”

Article 333 of the Code of Practice reads:

“It is a rule which governs in all cases of exceptions, except in such as relate to the absolute incompetency of the judge before whom the suit is brought, that they must be pleaded specially in limine litis, before issued joined, otherwise they shall not be admitted.
“Hereafter no dilatory exceptions shall be allowed in any case after a judgment by default has been taken; and in every case they must be pleaded in limine litis and at one and the same time, otherwise they shall not be admitted; nor shall such exceptions hereafter be allowed in any answer in any cause.”

We have held that after default an exception as to the right and capacity of plaintiff to sue comes too late. Parish of St. John the Baptist v. Shexnaydre, 34 La.Ann. 850. A denial to plaintiff’s capacity to answer is insufficient. It should have been pleaded in limine litis before answer filed. Dunlevy Packing Co. v. Juderman, 1 La.App. 476; McDonald v. Burns, 2 La. Ann. 1; Powe v. Morgan’s La. & T. R. R. & S. S. Co., 7 La.App. 51; Bagala v. Kimble, 225 La. 943, 74 So.2d 172.

On trial, without objection, plaintiff introduced in evidence the authentic act under which she claimed title, which recited' that the property was to be her separate and paraphernal property acquired with her own separate and paraphernal funds under her own administration and control. Of course, such a stipulation in a deed is not always conclusive and is subject to attack, but in the instant case the defendant made no effort whatsoever to traverse the facts set forth in said title. Under these circumstances, the record having established the nature of the property as belonging to the separate estate of plaintiff, thus overcoming the presumption of community of ownership, it follows that the Court of Appeal, Second Circuit, properly overruled the exception.

In his answer to plaintiff’s petition, defendant reconvened and asked that he be remunerated for expenses and taxes paid on the property. Under Article X, Sec. 11, of the Constitution of 1921, it is provided:

“ * * * No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser; * * »

We have recently held in Thurmon v. Hogg, 225 La. 263, 72 So.2d 500, that the above provision docs not apply to the ven-dee or transferee of the tax purchaser. Therefore, the cancellation of the tax deed to Travis Campbell and his quit-claim deed to Iva E. Johnson cannot be predicated upon plaintiff’s payment of taxes.

Defendant did not prove the expenses alleged to have been incurred by him, and the Court of Appeal, Second Circuit, was correct .in disallowing them.

For the reasons assigned, the judgment of the Court of Appeal of the Second Circuit, decreeing Mrs. Nellie Stevens to be the true and lawful owner of the following described property

“NWi/i of the NW14 of Section (19), Township (17) North, Range (10) West, Webster Parish, Louisiana, containing 3814 acres more or less.”

and as such entitled to the full and undisputed possession thereof, is affirmed; all costs to be paid by defendant.

HAMÍTER and McCALEB, JJ., concur in the decree. .

'On Application for Rehearing.

PER CURIAM.

We are of the opinion that the judgment of the Court of Appeal as well as the judgment of this court on original hearing with reference to the tax title is correct.

However, we have given more thought to the nature of the exception which the defendant in this case filed in the Court of Appeal on application for rehearing, and have decided, contrary to our original opinion, that an exception which questions the right or interest of a married woman to file a petitory action and stand in judgment is the peremptory exception of want of interest, or no right of action, and not the dilatory exception of want of capacity.

It is clear that the dilatory exception of want of capacity is not involved here, as the exception of want of capacity puts at issue only the procedural capacity of the plaintiff, and does not raise the question of whether the plaintiff has any interest in enforcing judicially the right asserted. See Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375; McMahon, Parties Litigant in Louisiana, The Exception of Want of Capacity, 11 Tul.L. Rev. 538, 546-547. On the other hand, the exception of want of interest, or no right of action, does raise the question of whether the plaintiff has any interest in enforcing judicially the right asserted. . Art. 15, La. Code Prac.; Ritsch Alluvial Land Co. v. Adema, 211 La. 675, 30 So.2d 753. Moreover, the exception of want of interest, or no right of action, is a peremptory exception which can be filed at any time before definitive judgment by the court of last resort, and which will even be noticed by the court ex proprio motu if necessary. Brown v. Saul, 4 Mart.,N.S., 434; State v. Desforges, 5 Rob. 253; see McMahon, Parties Litigant in Louisiana, The Exception of Want of Interest, 11 Tul.L.Rev.1, 527-538.

In Succession of Howell, 177 La. 276, 148 So. 48, this court held that an exception challenging the right of a married woman to sue and stand in judgment is the peremptory exception of no right of action (want of interest), and not the dilatory exception of want of capacity. See also Smith v. Brock, La.App., 200 So. 342; Hand v. Coker, La.App., 11 So.2d 272; Casente v. Lloyd, La.App., 68 So.2d 329.

After further thought we háve also concluded that we erred in our original opinion in holding that the plaintiff in this case established the property in dispute as belonging to her separate estate simply by introducing in evidence — without objection ■by the defendant — the deed to the property, which is in her name and which contains the statement that the purchase is being made with separate and paraphernal funds for her separate estate. It is elementary that a recitation of paraphernality in a realty deed does not affect the presumption which exists in this state that property purchased in the name of either spouse during the marriage is community property. Houghton v. Hall, 177 La. 237, 148 So. 37; Johnson v. Johnson, 213 La. 1092, 36 So.2d 396; Succession of Le Jeune, 221 La. 437, 59 So.2d 446.

In this court respondent, Mrs. Nellie Stevens, filed a motion praying that we remand the case to the lower court so that evidence might be adduced on the exception of no right of action filed by relator, and she annexed to her motion affidavits in support of her contention that the property here involved was acquired with separate and paraphernal funds. As this is a court of appellate jurisdiction, we cannot consider these affidavits in these proceedings. However, instead of granting a rehearing in this case we have decided to remand it to the lower court so that relator’s exception of no right of action may he tried, evidence adduced, and, a ruling obtained from the trial judge on this issue. See Art. 346, La.Code Prac.; Waterhouse v. Star Land Co., 139 La. 177, 71 So. 358.

We realize that our procedure in this case is unusual. However, in the interest of justice and under the special circumstances here existing we think it best to remand the case for trial of the exception. If this land is in fact the separate property of Mrs. Stevens, she has the right to recover it in a petitory action.

This case is ordered remanded to the Twenty-Sixth Judicial District Court for the Parish of Webster solely for trial and decision on the exception of want of interest, or no right of action. The district judge is to dismiss this suit if the exception is well founded.

HAMITER, Justice

(dissenting).

While I agree with the legal pronouncements contained in the per- curiam issued by the majority in connection with a refusal of a rehearing, I am of the opinion that in the interest of orderly and proper procedure a rehearing should be granted. The granting of it would result in the vacating or setting aside of our original decree which overruled the exception of no right of action — a prerequisite for permitting any further consideration of that exception.

      . This is the only evidence in the record which tends to show whether this is separate or'community property.


author: McCALEB, Justice.

text:
    230 La. 117
    Raymond H. DELAUNE et ux. v. The BOARD OF COMMISSIONERS FOR The PONTCHARTRAIN LEVEE DISTRICT.
    No. 40014.
    Supreme Court of Louisiana.
    May 7, 1956.

      Christensen, Salomon & Christensen, by Siegfried B. Christensen, New Orleans, for plaintiffs-appellants.
    George A. Dreyfous, William V. Red-mann, New Orleans, amici curiae.

      Lloyd R. Himel, Sigur Martin, Lutcher, for defendant-appellee.
   McCALEB, Justice.

Plaintiffs brought this suit to recover $5,000, the alleged value of two certain parcels of land owned by them bordering on Lake Pontchartrain which were appropriated by the Board of Commissioners for the Pontchartrain Levee District for the construction of a levee along the south shore of the lake to protect the lands lying back of said levee from overflow of the waters of the lake.

The defendant Board filed an exception of no cause of action to the petition and, after argument, it was maintained by the trial judge. Plaintiffs applied for a rehearing and filed a supplemental petition reiterating the allegations of their first petition and raising certain constitutional issues not theretofore presented. However, the judge adhered to his original opinion and dismissed the suit. Hence this appeal.

The exception interposed by defendant is founded on the premise that plaintiffs’ property, fronting on Lake Pontchartrain, was burdened with a public servitude for the construction and repair of levees under Article 665 of the Civil Code and was lawfully appropriated for such use; that, by Section 8 of Article 16 of the Constitution, as amended by Act 398 of 1946, the Board was granted specific authority and it became its mandatory duty to build a levee bordering the shores of Lake Pontchartrain from the intersection of the Orleans and Jefferson Parish line to the east end of the Bonnet Carre Spillway to protect the lands fronting the lake from the flood-waters of the Mississippi River which might be released through said Spillway and that, since the only amount due under Section 6 of Article 16 of the Constitution for the appropriation of the land for this public purpose is the assessed value thereof for the preceding year, no cause of action is alleged because of the failure of petitioners to set forth such assessed value.

It is the well-established law and jurisprudence of this State that a servitude in favor of the public is imposed upon land adjacent to navigable rivers and streams for the purpose of constructing and repairing levees, roads and other public or common works. Article 665 of the Civil Code; Hanson v. City Council of Lafayette, 18 La. 295; Bourg v. Niles, 6 La.Ann. 77; Dubose v. Levee Commissioners, 11 La.Ann. 165; Bass v. State, 34 La. Ann. 494; Ruch v. City of New Orleans, 43 La.Ann. 275, 9 So. 473; Peart v. Meeker, 45 La.Ann. 421, 12 So. 490 and Dickson v. Board of Com’rs, 210 La. 121, 26 So.2d 474 (containing an excellent historical background of the evolution of this servitude). It is equally well settled that land burdened with this servitude may be taken for the purpose of making or repairing public levees without compensation and that such appropriation violates neither Section 2 of Article 1 of our Constitution, forbidding the taking or damaging of private property except for public purposes and after just compensation is paid, see Ruch v. City of New Orleans and Dickson v. Board of Com’rs, supra, nor the due process clause of the Fourteenth Amendment to the Constitution of the United States for the reason that riparian ownership is subject to the superior right of the public to the space necessary for levees, roads and the like. Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 349, 40 L.Ed. 490.

Moreover, it has been consistently recognized that the provisions of Section 6 of Article 16 of the Constitution of 1921, that “Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes, * * * shall be paid for at a price not to exceed the assessed value for the preceding year; * * * ”, does not establish a yardstick of, compensation for such lands but is merely a gratuity. Boyce Cottonseed Oil Mfg. Co. v. Board of Com’rs, 160 La. 727, 107 So. 506; Wolfe v. Hurley, D.C., 46 F. 2d 515, affirmed 283 U.S. 801, 51 S.Ct. 493, 75 L.Ed. 1423 and Dickson v. Board of Com’rs, supra.

With the foregoing principles in mind, we undertake a consideration of the legal questions presented in the case. At the outset, it is clear that the abutting of plaintiffs’ property on Lake Pontchartrain furnishes no ground for a conclusion that it is, a priori, subject to a public servitude for levee purposes. Article 665 of the Civil Code provides that public servi-tudes “ * * * relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers, and for the making and repairing of levees, roads and other public or common works”. (Italics ours.) This Article, in conformity with its language, has been found to 'be applicable only to navigable rivers or streams. Lakes are not included.

In Pontchartrain Railroad Co. v. Board of Levee Com’rs, 49 La.Ann. 570, 21 So. 765, plaintiff was awarded compensation for the damages sustained by its lake-front property as a result- of the building of a levee between the city of New Orleans and Lake Pontchartrain. The court pointed out that, while the front proprietor on the Mississippi River or other navigable rivers must yield his property without compensation for levee and road purposes, plaintiff’s land owed no such servitude as it was not on the river. See also Articles 455, 509 and 510 of the Civil Code and State v. Aucoin, 206 La. 787, 20 So.2d 136 and authorities there cited.

Since the lake-front location of plaintiffs’ property did not burden it with a public servitude for levee purposes, it would appear from the well-pleaded facts of the petition that a cause of action is stated. However, counsel for defendant Board contend, and the trial judge held, that the land was nevertheless encumbered with a servitude for levee purposes by virtue of Sections 6 and 8 of Article 16 and Section 30 of Article 14 of the Constitution and under the holdings in Wolfe v. Hurley, supra, and Board of Com’rs of Tensas Basin Levee District v. Franklin, 219 La. 859, 54 So.2d 125 (appeal dismissed for want of a substantial Federal question, 342 U.S. 844, 72 S.Ct. 80, 96 L.Ed. 638, rehearing denied 342 U.S. 889, 72 S.Ct. 174, 96 L.Ed. 667).

There is no merit whatever in the contention that the cited Sections of the Constitution (or any one of them) imposed a servitude on plaintiffs’ land. Section 30 of Article 14 pertains to the rights of riparian owners on navigable rivers, lakes or streams within the limits of the Port of New Orleans or within a municipality having a population in excess of 5,000 inhabitants. It has nothing to do with this case.

Section 6 o.f Article 16, as we have heretofore found, provides for the payment to the owner of a gratuity equal to the assessed value of his property taken for levee purposes; it does not and could not, for obvious constitutional reasons, burden land already separated from the public domain with a servitude. The most that can be said with reference to the pro- ■ vision is that it may be liberally interpreted so as to sanction the taking of property for levee purposes without resort to court, proceedings when the necessity for immediate action is in the public interest and that a landowner may not enjoin or prevent the taking even though proof of the right of appropriation may not be as conclusive as that required in a suit, such as this,’ for the recovery of compensation or resultant damages. Wolfe v. Hurley and Board of Com’rs of Tensas Basin Levee District v. Franklin, supra.

Section 8 of Article 16 of the Constitution, which authorizes the defendant Board to construct levees on the shores of Lake Pontchartrain to protect against a rise in the level of the lake caused by the floodwater9 of the Mississippi River at times when the Bonnet Carre Spillway is in use, does not create a servitude on any property for levee uses, nor does it sanction the taking of property for levee purposes without compensation. If it did, it would be violative of the Federal Constitution for the reasons to which we have heretofore adverted.

Accordingly, it remains only to determine whether the adjudications in Wolfe v. Hurley and Board of Com’rs of Tensas Basin Levee District v. Franklin, supra, have extended the provisions of Article 66S of the Civil Code so that the public servitudes therein imposed for levee purposes apply, to lands which do not border on navigable streams.

Under the earlier decisions, this court generally held that the public servitude for levee purposes existed only on property actually fronting on navigable rivers or streams. Pontchartrain Railroad Co. v. Board of Com’rs, supra. In Koerber v. New Orleans Levee Board, 51 La.Ann. 523, 25 So. 415, payment of compensation was ordered for earth taken by Orleans Levee Board from nearby property to broaden a protection levee which ran at.right angles to the Mississippi River, the court holding that this property was not subject to a servitude, not being adjacent to the river. The restrictive nature of the public servitude was also noted in Village of Moreauville v. Boyer, 138 La. 1070, 71 So. 187 and McGeehan v. Board of Levee Commissioners, 165 La. 241, 115 So. 473.

On the other hand, in Wolfe v. Hurley, supra, petitioners sought to enjoin the Secretary of War and the Mississippi River Commission from constructing a new levee on lands some four miles distant from an existing levee on Lake Palmyra (an arm of the Mississippi River) until just and adequate compensation be made for the lands taken therefor. Apparently, the banks of Lake Palmyra were rapidly caving and the character of the land fronting directly on the lake made it unavailable for levee purposes. In denying the injunction, a three-judge Federal Court, with Judge Dawkins (formerly a member of this Court) as its organ, concluded that the legal servitude contemplated 'by Article 665 of the Civil Code applies “ * * * not only to property which actually adjoins the river’s edge, but to all of that which is within range of the reasonable necessities of the situation, as produced by the forces of nature, unaided by artificial causes”. [46 F.2d 522].

Our recent decision in Board of Com’rs of Tensas Basin Levee District v. Franklin, supra, where we upheld an injunction against the defendants from interfering with levee drainage work being conducted by the Levee Board on their land, which was located some 17 miles from a navigable stream (Bayou Bartholomew), approved the rationale of Wolfe v. Hurley that the servitude imposed by Article 665 of the Civil Code is not limited in its scope to the land bordering' on the shore of the river but covers all adjoining lands within the reasonable necessities for flood control unaided by artificial causes.

We do not regard the decisions in either Wolfe v. Hurley or the Franklin case as controlling this cause in view of the allegations of plaintiffs’ petition which merely show that the land is located on Lake Pontchartrain. How far it is from the Mississippi River or any other navigable stream is neither averred in the petition nor shown by exhibits thereto and, therefore, it is impossible to ascertain whether there is a servitude thereon for levee purposes. It is manifest from a consideration of Article 665 of the Civil Code and the numerous authorities construing it that, where lands are not shown to be riparian lands, they are not subjected to a public servitude. This servitude, as explained in Dickson v. Board of Com’rs, comes into existence at the time the property bordering on the navigable stream is separated from the public domain. Accordingly, in order to ascertain whether a particular property appropriated for levee purposes is subject to a servitude, it is essential to trace the title to the original grant when the land itself does not actually front on the stream. If that grant shows that the tract was riparian property when separated from the public domain, then the next question to be determined, conformably with the holdings in Wolfe v. Hurley and the Franklin case, is whether the property taken “is within range of the reasonable necessities of the situation, as produced by the forces of nature, unaided by artificial causes”. These are purely questions of fact which are determinable 'by a trial on the merits and not on an exception of no cause of action.

The judgment appealed from is therefore reversed; the exception of no cause of action is overruled and the case is remanded for further proceedings in accordance with law and consistent with the views herein expressed. Taxation of costs of this appeal is deferred until final disposition of the case.

HAMITER, J., concurs in the decree.

      . If tho contention were legally sound, the exception of no cause of action is procedurally proper. See Lacour v. Red River, Atchafalaya & Bayou Boeuf Levee Dist., 158 La. 737, 104 So. 686; Dickson v. Board of Com’rs, 210 La. 121, 26 So.2d 474.

      . In that case, the Supreme Court, taking cognizance that title to riparian lands in Louisiana became burdened with the public servitude for levee and road use at the time those lands were separated from the public domain, concluded that:
      “The subject-matter of such rights and regulations falls within the control of the states, and the provisions of the fourteenth amendment of tho constitution of the United States are satisfied if, in cases like the present one, the state law, with its benefits and its obligations, is impartially administered.”

      . It is manifest that the validity of this provision is sustainable only on the basis that payment of assessed value is a gratuity for to' regard it as compensatory would be to render it inimical to the due process clause of the Fourteenth Amendment to the Federal Constitution. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 681, 41 L.Ed. 979.

      . In Dickson v. Board of Com’rs [210 La. 121, 26 So.2d 478] the Court, after reciting the historical background of servi-tudes for levee uses in Louisiana, observed that, when the building or repairing of levees is involved, “ * * * the state has the right to act first, i. e., the authority to appropriate such land to a use to which it is subject under its very title, and talk later.”

      . The view expressed in the Franklin case is to be compared with that in the later case of Hebert v. T. L. James & Co., 224 La. 498, 70 So.2d 102, where the court gave Article 665 of the Civil Code a restrictive interpretation when applied to a servitude for road purposes.

      . Compare the Dickson and Lacour cases where the petitions exhibited that the lands bordered navigable streams and were thus subject to the public servitude.


author: GLADNEY, Judge.

text:
    Thomas J. FOSHEE, Plaintiff-Appellant, v. Etheridge L. McGEE, Defendant-Appellee.
    No. 8508.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.

      Watson & Williams, Natchitoches, for appellant.
    Julian E. Bailes, Natchitoches, for ap-pellee.
   GLADNEY, Judge.

As a result of a collision between plaintiff’s truck and defendant’s automobile on January 7, 1955, in Natchitoches Parish, Louisiana, plaintiff instituted this suit to recover the sum of $315 property damage. Answering plaintiff’s petition, the defendant denied liability and reconvened for damage to- his automobile alleged to be $545.20. After trial there was judgment in favor of plaintiff for the sum of $151.-69 and the reconventional demand was disallowed. From the judgment plaintiff alone appealed and appellee has not answered the appeal.

The sole contention presented by the appeal is whether the trial court erred in not awarding plaintiff damages in the sum of $315. Under the provisions of Arts. 591, 592, 886, 887 and 888 of the Code of Practice the defendant and appellee herein is foreclosed from urging any claim or demand rejected by the trial court.

Following the accident of January 7, 1955, appellant received three estimates of the cost of repairing the damage to his truck, the lowest of which was made by the Peoples Motor Company of $315. The Peoples Motor Company thereafter did- repair plaintiff’s truck but not in accordance with the estimate submitted, which deviation was prompted by Foshee’s election to save expense by furnishing ceitain used parts purchased in Shreveport for $40. The actual labor and parts so furnished by the Peoples Motor Company amounted to $96.-69. The trial court held adequate proof was presented on these items only: the bill of the Peoples Motor Company of $96.69, the item of $40, representing' the used parts purchased by Foshee in Shreveport, and $15 as expense incurred by Foshee in traveling from Natchitoches to Shreveport and return. The total of these items is $151.-69 as allowed in the judgment.

It is earnestly argued by counsel for appellant that notwithstanding plaintiff’s truck was repaired for less than the lowest of three estimates, he is entitled to be reimbursed the estimated cost and not restricted to the amount allowed by the trial court. We cannot agree with this contention.

Where the damage to an automobile falls short of its loss or destruction, the general rule is: “The measure of damages for injury to personal property which has not been entirely destroyed is the difference between its value at the place immediately before and immediately after the injury, or, if such sum be less, the reasonable cost of repairs to restore the property to its previous condition.” 25 C.J.S., Damages § 83, p. 597. This rule has been consistently followed in the jurisprudence of Louisiana, some of the more recent cases being: Folse v. Flynn, La.App.1941, 200 So. 160; Goode v. Hantz, 1946, 209 La. 821, 25 So.2d 604; Christian v. Martin, La.App.1949, 38 So.2d 181; Carrol v. Hartford Accident & Indemnity Company, La.App.1951, 52 So.2d 258; Heyden v. Dubos, La.App. 1952, 56 So.2d 276; Fenerty v. Culotta, 1955, 228 La. 649, 83 So.2d 888, Id., La.App., 80 So.2d 537.

There have been occasions where the court has accepted as evidence estimates as to the cost of repair but only where at the time of trial the vehicle has not been actually repaired. Thus, in Christian v. Martin, La.App. 1949, 38 So.2d 181, 183, the court pointed out the only evidence before it respecting the amount required to place the car in the condition it was before the accident consisted of three written estimates from automobile repairing establishments and that since the automobile at the time of trial had not been repaired, the court would accept the lowest estimate as proper evidence of the damages to be adjudicated. In the instant case, however, the automobile was actually repaired and plaintiff can recover no more than the cost thereof necessary to restore the property to its condition previous to the collision.

The evidence sustains the judgment. In support of his demands plaintiff submitted the testimony of Clyde Martin Bostick, manager of the Peoples Motor Company, and his own testimony. Bostick testified that in the repair of the automobile the estimate furnished by the Peoples Motor Company was not followed and he could not testify as to the value of the repairs other than as shown by the records of his company. Foshee testified as to the expenditure of $40 for used parts and that the sum of $15 expense was incurred in securing the'se parts. Wayland Roark, a mechanic at the Peoples Motor Company, performed substantially all of the labor in the repair of plaintiff’s Studebaker truck. He testified the actual cost of the parts furnished by the Peoples Motor Company and the labor supplied on the truck amounted to $96.69.

From the foregoing it is apparent that the court correctly appraised the evidence as to the actual expenses incurred by Foshee in the repair of the truck. Evidence as to the loss of wages and depreciation of the truck due to the accident, were properly excluded from the record as not .covered by the pleadings.

It, therefore, follows from the reasons hereinabove set forth we do not find manifest error in the judgment from which appealed. It is our opinion, however, that the cost of this appeal should be taxed upon the appellee, and as so amended, the judgment is affirmed.


author: HARDY, Judge.

text:
    Dr. E. A. JOHNSON et al., Plaintiffs-Appellees, v. Thomas (Dude) NORA, Defendant-Appellant.
    No. 8482.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    On 'Rehearing May 21, 1956.

      Watson & Williams, Natchitoches, for appellant.
    Julian E. Bailes, G. F. Thomas, Jr., Natchitoches, for appellees.
   HARDY, Judge.

This suit, instituted by the fourteen named plaintiffs, sought the issuance of an injunction prohibiting defendant from continuing to operate the business in which he was engaged, described by plaintiffs as a “liquor store, dance hall and gambling house and beer parlor”, known as Fifth Street Package Store in the City of Natch-itoches, Louisiana. Additionally, plaintiffs prayed for judgment in the sum of $250 each, representing damages in the nature of “worry, mental pain, suffering and an-quish, loss of sleep, inconvenience, embarrassment and mental upset because of the manner in which defendant has conducted, his business.”

In answer to plaintiffs’ suit defendant filed an exception of no right nor cause of action and an answer, which latter was a specific denial of the allegations of plaintiffs’ petition, and with which defendant coupled a reconventional demand praying; for damages in the sum of $10,000, together with $500 attorney’s fees, and other expenses in the sum of $200.

To defendant’s reconventional demand plaintiffs interposed an exception of no cause nor right of action. The exceptions filed by defendant and plaintiffs, respectively, were referred to the merits without objection. After trial there was judgment making the rule absolute and ordering the issuance of a preliminary writ of injunction. Contemporaneously with this action the case was submitted on the record as made up on trial of the rule and there was judgment in favor of plaintiffs and against the defendant perpetuating the writ of injunction and:

“ * * * forever enjoining and restraining and prohibiting the said defendant, Thomas (Dude) Nora, his agents, employees and all other persons acting or claiming to act on his behalf from operating the business known as the Fifth Street Package Store on Fifth Street in the City of Natchi-toches, Natchitoches Parish, Louisiana, including the liquor store, dance hall, cafe and beer parlor, being the business presently operated by the defendant.”

From this judgment defendant appealed to the Honorable the Supreme Court of the State of Louisiana, which ordered the appeal transferred to this tribunal; Johnson v. Nora, 228 La. 603, 83 So.2d 643.

Before this court it is argued on behalf of defendant that the evidence does not. support the issuance of the injunction and, alternatively, that the judgment exceeds the legal relief to which plaintiffs are entitled in that it orders the closing of defendant’s legitimate business operations.

The record presented for our consideration, in addition to numerous exhibits, contains the transcript of testimony of witnesses aggregating 497 pages, at least 80% ■of which is purely repetitive and could have been presented, more effectively, by a brief stipulation of counsel.

In oral argument before this court counsel for plaintiffs contended that certain rebuttal evidence, consisting of two reels of sound film, had been improperly excluded by a ruling of the district judge. Examination of this point has convinced us that the ruling was. correct. The evidence tendered would have served the exclusive purpose of adding weight to the presentation of plaintiffs’ case, in chief, and should have been tendered at such time, failing which it was not properly offered.

The defendant and all of the plaintiffs, with one exception, are members of the Negro race. Plaintiffs are property owners and residents living in the immediate vicinity of the Fifth Street Package Store, which is owned and operated by defendant. In 1948, following repeal of the local option law prohibiting the sale of intoxicating liquors in Natchitoches Parish, defendant built and commenced the operation of the Fifth Street Package Store, which business was intended and conducted for the purpose of selling package liquors to Negro patrons, and was located on property of the defendant, where he also maintained his residence, .at Municipal No. 816 Fifth Street in the City of Natchitoches. The business prospered to such an extent that defendant substantially enlarged the physical improvements in connection therewith and within the past few years has operated a cafe, dance hall and beer parlor in a building some 130 feet in length by 20 feet in width. Although the area in which the offending business is located is primarily residential in nature, there is no contention, nor is fhere any ground therefor, as to the legality of the location and the operation of the business conducted by defendant. Nor is it urged that defendant’s business constitutes a nuisance, per se, but, on the contrary, it is argued that the conduct of the business has become a nuisance, per .accidens, or, in fact, to the abatement of which plaintiffs are entitled.

In support of their action plaintiffs made a number of serious charges with reference to the operation of defendant’s business, most of which, as attested by the evidence, were entirely unfounded. Rather than address ourselves to the unnecessary consideration of the unsubstantiated complaints advanced by plaintiffs, we propose to deal as briefly as may be possible in this opinion only with those valid objections which, according to the record, establish plaintiffs’ rights to relief.

The testimony of eight of the plaintiffs ■ and some ten or twelve other witnesses, we think, sufficiently justifies the conclusion that plaintiffs are seriously disturbed in their peaceful occupancy and enjoyment of their nearby homes by loud music, loud talking, including the occasional use of obscene and profane language; arguments and altercations between drunken patrons of defendant’s establishment; trespass and the commission of indecent acts upon the properties of plaintiffs by unidentified patrons, and other -disagreeable and disturbing actions of a similar nature. As against these annoyances we think the law is clear that plaintiffs are entitled to relief. It is true that defendant tendered the testimony of some fifty witnesses, more or less, residing in the same immediate neighborhood, who testified that they were not disturbed by the operation of defendant’s business. However, the general rule, which has been many times stated in our jurisprudence, consistently accords relief to those who suffer from disturbances calculated to cause serious or material discomfort to persons of ordinary sensibilities and in a normal state of health. Other pertinent considerations are the nature of the locality and the reasonableness of the business itself; Haynes v. Smith, La.App., 85 So.2d 326; Hobson v. Walker, La.App., 41 So.2d 789; Kellogg v. Mertens, La.App., 30 So.2d 777; Myer v. Minard, La.App., 21 So.2d 72; Moss v. Burke & Trotti, 198 La. 76, 3 So.2d 281; Irby v. Panama Ice Co., 184 La. 1082, 168 So. 306; Meyer v. Kemper Ice Co., 180 La. 1037, 158 So. 378; Froelicher v. Southern Marine Works, 118 La. 1077, 43 So. 882.

We find no difficulty in concluding that plaintiffs are entitled to relief from unnecessary noise and disturbances, particularly during the late hours of night and from disturbance of and offenses against the privacy and peaceful enjoyment of their homes, particularly in their right to freedom of bawdy, rowdy or obscene disturbances resulting from the unrestrained conduct of patrons of defendant’s business.

This case presents what we consider to be a classic example of the conflict of opposing rights of the parties hereto. Defendant unquestionably has the right to conduct a legal business but it must be conducted in such manner as will not unduly offend nor disturb the equally unquestionable right of plaintiffs to the peaceful enjoyment of their respective properties. Nor can it be denied that while plaintiffs are entitled to the protection of these rights, and to the abatement of such nuisances as unduly interfere therewith, they are not justified in demanding or receiving that extreme nature of relief which would deprive defendant of his equally inalienable right to conduct a legitimate business. As this court had occasion to declare in its opinion in Hobson v. Walker, 41 So.2d 789, 794:

“The use of injunctive process which interferes with, restricts or restrains the exercise of the rights of those engaged in trade, business or commerce is one which has been carefully safeguarded and one which- is not used except in those cases where the established facts are clear and convincing.”

In the instant case we are convinced that while plaintiffs are entitled to relief in the nature of abatement of those nuisances which result from the conduct of defendant’s business, they are not entitled to that extreme- degree .of relief which would- have the drastic, and punitive effect of prohibiting defendant from the continued conduct of a legitimate business. It follows, however, that the burden of effecting the abatement of the nuisances by the exercise of appropriate restraint and restrictions, upon both the manner and nature of his business and the conduct of his patrons, must be imposed upon defendant.

With reference to the claims of plaintiffs and the reconventional demand of defendant in the nature of damages, it suffices to say that none of the elements necessary to support these claims were established.

The effect of the reasons above noted is to require the amendment of the judgment appealed from. We are faced with considerable difficulty in drafting a decree which will adequately protect the rights of both the parties plaintiff and defendant. Obviously it is imppssible to cover with detailed certainty and exactness the various circumstances and conditions which are here involved. We are quite cognizant of the fact that the efficacy of any decree which is warranted under the facts of this case will eventually depend upon a showing of good faith and good sense by the parties to this litigation.

The judgment appealed from is amended to read as follows:

It Is Ordered, Adjudged and Decreed, .that there be judgment in favor of the plaintiffs, Dr. E. A. Johnson, Crittie Carroll Johnson, Noble Butler,, Joyce LeBlanc Butler, Herddie Rivers, Albert Metoyer,'. Celestine Roque Metoyer, Louise Sarpy,. Mrs. Amy Ellis, George Sarpy, Rosabella Monette Sarpy, Cyril Cross, Ezora Cross and Robert H. Dixon, and against the defendant, Thomas (Dude) Nora, forever enjoining, restraining and prohibiting the ■ said defendant, his agents, employees and all other persons acting on his behalf from operating the business known as the Fifth ■ Street Package Store located on Fifth. Street in the City of Natchitoches, Natchi-toches Parish, Louisiana, including a liquor store, dance'‘hall, cafe and beer parlor, in such a manner as to constitute a nuisance resulting in the undue and avoidable disturbance of the peace of the neighborhood and the normal enjoyment by the plaintiffs of their respective properties.

It Is Further Ordered that costs of this appeal are to be borne by plaintiffs-appel-lees, all other- costs being taxed against ■the defendant; and, as amended, the judgment appealed from is affirmed.

On Rehearing.

On behalf of defendant an application for a rehearing was filed in this case which, while evidencing an agreement with the decree of the court, requested further consideration as to the apportionment of costs. Impressed with the equity of applicant’s contention, we saw fit to grant a rehearing, restricted to a consideration of this point.

We took occasion in our original opinion to emphasize what we regarded as the unnecessarily voluminous record, a substantial portion of which was made up of purely repetitive testimony. Re-examination of the record evidences the fact that, on at least two occasions, counsel for defendant attempted to procure admissions which would have represented substantial savings both in time and cost, and which, in our opinion, could not possibly have prejudiced plaintiffs’ case. These offers were rejected by counsel for plaintiffs.

We are further impressed, as a matter of equity, with the proposition that plaintiffs consistently insisted upon a judgment which would have had the drastic effect of completely terminating defendant’s conduct of a legal business. The unnecessary harshness of this remedy, which we emphasized in our opinion, was unjustified in the instant case.

Under the circumstances, we are impressed with the merit of defendant’s contention and feel that, in all fairness, he is entitled to some relief through the exercise of the discretionary authority of this court with relation to costs, which authority is conceded by counsel for plaintiffs.

Accordingly, it is ordered, adjudged and decreed that our original judgment in this case be amended to the extent of providing that all costs be, and they are hereby, taxed one-half against plaintiffs and one-half against defendant, and, as amended, our judgment on original hearing . is reinstated.


author: AYRES, Judge. PER CURIAM.

text:
    J. L. WILLIAMS, Plaintiff-Appellee, v. J. M. RUSSELL, Defendant-Appellant.
    No. 8506.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14,1956.

      John Makar, Natchitoches, for appellee.
    Pickett & Pickett, Many, for appellant.
   AYRES, Judge.

This is an action for workmen’s compensation wherein plaintiff was awarded compensation at the rate of $23.40 per week from July 27, 1953, to September 7, 1953, and $5.85 per week thereafter for 294 weeks, less payments previously made, and for $100 medical expenses.

The defendant appealed from the judgment and plaintiff has answered the appeal, praying he be awarded compensation as for total and permanent disability.

Plaintiff sustained accidental injuries July 27, 1953, while employed by defendant at a rate of pay of $1 per hour, 40 hours per week, in the operation of a lumber and' tie mill combination of the defendant located in Sabine Parish, Louisiana. Specifically, plaintiff was employed to run the edger and “tail” the saw, at said mill.

That plaintiff sustained accidental injuries of a disabling nature is amply established by the record. During the afternoon of the aforesaid date the carriage used in-conveying the logs to the saw “jumped” the track rails upon which it was operated. Plaintiff, with the assistance of others, engaged in lifting and placing this machinery-back on the track. The weight of the machine was approximately 2,600 pounds.. While so engaged, plaintiff strained and injured his lower back in the lumbosacral' area. The strain and injury, which were-then and there reported, required immediate medical attention. Accordingly, plaintiff was conveyed by automobile to the clinic-of Dr. O. L. Sanders in Converse, Louisiana, but soon thereafter was transferred to-the clinic of Dr. Prothro in Pleasant Hill',, Louisiana, where he remained hospitalized under the doctor’s treatment for eight days. Upon his release he returned home, and for several months was treated by Dr. Sanders.. Neither of these doctors testified in the case.. Apparently, their testimony was relatively unimportant as both plaintiff and defendant rested their case upon the findings and conclusions of Drs. Ford J. MacPherson, for plaintiff, and Carson R. Reed, Jr., for defendant, both orthopedic surgeons of Shreveport.

The issue presented pertains primarily to the extent and duration of plaintiff’s disability. The determination of this question is somewhat complicated by the fact that, seven or eight years previous to the accident herein specifically concerned, plaintiff sustained an accident, particularly to the upper portion of his back, wherein there was a massive fracture of the second lumbar vertebra, with considerable involvement of the first and third vertebra and an obliteration of the upper interspaces, the result of which was the formation of a kyphosis, commonly known as a “hunchback”, in the upper part of his back, with a compensating curvature of the lower spine, producing a lordosis, commonly known as “sway back”.

On account of said accident and injury, plaintiff was disabled for a period of three years, after which he recovered to such an extent that he was enabled to resume work as a manual laborer for a period of five years and extending until the occurrence of the accident of July 27, 1953. The work performed by him in the meantime and particularly at the time he was injured on the aforesaid date was hard manual labor, requiring stooping, straining and lifting of heavy objects, such as railroad ties and lumber and slabs sawed therefrom.

The later injury was confined to the lower part of the back and principally to the lumbosacral region. While both orthopedists treated said injury as being more or less a strain of that area, the record strongly suggests that the old back injury was of such severity that plaintiff’s back was more susceptible to subsequent injury and recurring pain than would have ordinarily been the case. Particularly, the kyphosis, with the compensating reverse lower spinal curve, predisposes plaintiff to straining injuries, with the result that lifting or straining places further tension on that area.

As of the date of his examination, April 19, 1955, Dr. MacPherson found tenderness in the area of plaintiff’s lower back with persistent involuntary muscle spasms and that plaintiff was suffering pain. In his report the witness stated as his opinion that plaintiff had reached the maximum recovery from his injury of July 27, 1953, notwithstanding he remained incapacitated and disabled from performing heavy manual labor, due, in part, to the old fracture of the second lumbar vertebra, which predisposed him to lumbosacral degeneration, and, in part, to the later acute straining injury. The doctor’s belief was that if plaintiff should return to heavy manual labor he would have an immediate recurrence of incapacitating lumbosacral pain, with the possibility of complete disablement, which would require the performance of an operation to fuse or immobilize the spine. Consequently, the witness recommended that plaintiff remain at light labor indefinitely. His evaluation of plaintiff’s condition was that plaintiff was totally and permanently disabled and incapacitated from doing heavy manual labor, attributable both to the injuries received in the previous accident and to those received in the accident of July 27, 1953, in about equal proportions.

Dr. Reed’s testimony unquestionably indicates the existence of pain and difficulty in plaintiff’s back. He says that straight leg raising on the right by plaintiff, while recumbent, is limited to 30 degrees and on the left to 70 degrees, due to pain in the region of the lumbosacral joint. His opinion was that plaintiff sustained a normal strain to his back, which without complications, should have disappeared in the 15 or 16 months elapsing between the accident and the date of his examination. Nonetheless, Dr. Reed states that spurring noted in the region of the fifth lumbar vertebra could have developed in the same period of time. This spurring was said to evidence osteoarthritis capable of causing pain.

Following the aforesaid accident, plaintiff apparently performed no labor of consequence until September 10, 1953, when, due to the exigency of the situation and the needs of his family, he secured employment with Matthews Lumber Company, operating a mechanical log loader. He continued with this work with some degree of regularity until the date of trial. In the respect that this work was manual labor, it was comparable to his former work, otherwise, very dissimilar. His work at the saw mill required standing, walking, straining and lifting. In operating the loader, plaintiff was seated and the operation of the machine was carried on by means of levers, brakes and pedals operated by hand and foot. No walking, standing, straining or lifting was necessary or required. Undoubtedly, the operation of this loader constituted much the lighter work and it was to this to which Dr. MacPherson referred in recommending that plaintiff be kept on lighter work indefinitely.

Plaintiff’s ability to perform heavy manual labor of the kind and character lie was performing at the time he was thus injured has been so impaired as to constitute total and permanent disability within the intent and purpose of the Workmen’s Compensation Statute, LSA-R.S. 23:1021 et seq. His right to compensation is unaffected by the fact that the accident may have, and, in all probability, did activate, and aggravate a preexisting physical condition resulting initially from a prior accident. Notwithstanding said prior accident and the disabilities suffered by' plaintiff therefrom, he had recovered to the extent of regaining his ability to perform hard manual labor and performed labor of that character for five successive years thereafter and until the day of the later accident, since when he has not been able to perform work of the same or similar character. He is, therefore, in our opinion, totally and permanently disabled within the spirit and purpose of the statute.

It is defendant’s contention that the prior injury is the sole cause of plaintiff’s disability ; that the pain of which plaintiff complains was the result of the continual strain occasioned by the kyphosis in the upper region of the back and by the reverse curvature or lordosis in the lower lumbar region. As a consequence, it was contended that if plaintiff received any injury at all in an accident of July 27,. 1953, it was only a muscle strain from which he recovered within four weeks and for which he has been paid compensation. There can be no doubf about plaintiff’s back being more susceptible to injury after the first accident than it formerly was. After his recovery therefrom, however, whatever deficiency remained was not sufficient to keep plaintiff from performing heavy manual labor to the very date of the last injury. The least that can be said is that the injury received July 27, 1953, aggravated the old injury and caused the condition of the already weakened back to become so serious as to totally incapacitate plaintiff from heavy work. The law and jurisprudence of this State is plain that such an injury in compensable. Connell v. Gilliland Oil Co., 2 La.App. 435, 439; Youman v. Railways Express Agency, Inc., La.App., 190 So. 858; Broussard v. R. H. Gracey Drilling Co., La.App., 70 So.2d 713, 721; Castee v. Great American Indemnity Co., La.App., 81 So.2d 101.

Appropriate here is an expression of the trial judge, quoted and adopted 'by this court, in Stovall v. S. Bender Iron & Supply Co., La.App., 152 So. 387, 389, where a similar defense was urged. There it was stated:

“ ‘If any trouble existed due to the first injury and which can now be attributed to the first injury, that trouble was latent. And, even if there was some latent incapacity due to the old injury, his disability to earn a livelihood was caused -by the injury while working for the defendant, S. Bender Iron Works & Supply Company, Incorporated, in 1932.
“ ‘ “Recovery in compensation cases depends upon disability whether caused by injury alone, or in conjunction with a latent disease.” Craft v. Gulf Lbr. Co., 151 La. 281, 91 So. 736. See, also, Womack v. New Orleans Public Service, Inc., 5 La.App. 71; Hicks v. Meridian Lbr. Co., 152 La. 975, 94 So. 903; Connell v. Gilliland Oil Co., 2 La. App. 435; Hutchinson v. Louisiana Cent. Lbr. Co. [& Southern Casualty Co.], 3 La.App. 413; Le Seur v. Rumbaugh, 6 La.App. 591; King v. McClanahan, 3 La.App. 117; Price v. Gilliland Oil Co., 3 La.App. 175.
“ ‘ “Recovery is not barred because of an old injury.” Connell v. Gilliland Oil Co., 2 La.App. 435; Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L.R.A.1918F, 862; McMullen v. Louisiana Central Lumber Co., 2 La.App. 773; Broussard v. Union Sulphur Co., 5 La.App. 340.’”

By a preponderance of the evidence, it is shown that the work-week consisted of five days of eight hours each. Plaintiff’s wage was computed at the rate of $1 per hour. Therefore, 65 percent of his wage of $40 is $26, which he should recover weekly during the period of his disability, not exceeding 400 weeks, less and except compensation previously, paid, shown in the record to be $78.

For the reasons assigned, the judgment appealed is amended and recast to read as follows: -

It is therefore ordered, adjudged and decreed there be judgment herein in favor of the plaintiff, John L. Williams, against the defendant, J. M. Russell, for the full sum and weekly compensation of $26 per week beginning August 3, 1953, and continuing during plaintiff’s disability, not, however, beyond 400 weeks, together with five percent per annum interest on each of said weekly installments from its maturity until paid, and for all costs, including costs of this ! appeal, less compensation previously paid in the sum of $78.

It is further ordered, adjudged and decreed there be further judgment in plaintiff’s favor against the defendant for $100 for medical expenses incurred by plaintiff and that the fees of the experts, Drs. Ford J. MacPherson and Carson R. Reed, Jr., be and the same are hereby fixed in the sum of $25 each and taxed as costs.

Amended and affirmed.

On Motion for Rehearing

PER CURIAM.

Defendant asserts in a motion for a rehearing, among the grounds alleged therefor, that the transcript lodged in this court was incomplete in that depositions of Drs. O. L. Sanders and H. M. Prothro, as well as the record of settlement made by plaintiff for injuries sustained by him in 1948, were omitted therefrom. Accordingly, it was prayed that the transcript be returned to the clerk of the trial court for completion. While the record before us does not disclose that these documents were offered in evidence, the clerk of court, by affidavit attached to defendant’s motion, informs us they were filed and constituted a part of the record, and plaintiff’s counsel concedes as much. In the meantime, however, the clerk of court has forwarded to this court, and there,have been incorporated in the record, the depositions of the two physicians. The other record was not located in her office. ,

It may be appropriate to say that defendant, in originally briefing this case before us, neither called our attention to the absence of these documents from the transcript nor referred to them in any manner whatsoever. He evidently attached little, if any, importance to them. In presenting the motion for a rehearing he has not pointed out wherein defendant was prejudiced by the clerk’s failure to properly incorporate the documents in the transcript. We fail to find, on our review of the testimony in the depositions, anything that would warrant or justify a conclusion different from that already reached.

That plaintiff sustained injuries in a previous accident and that settlement was made therefor is a matter conceded by all parties. The omission of the record of settlement from the transcript is, therefore, immaterial and affords defendant no grounds for complaint.

We find no merit in the motion for a rehearing, and it is accordingly denied.