author: LOTTINGER, Judge.

text:
    William D. SOUDER et ux. v. PENDLETON DETECTIVES, Inc., et al.
    No. 4227.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      H. Alva Brumfield, Baton Rouge, Wm. T. Bennett, Clinton, for appellant.
    Hammett & Bertel, New Orleans, Richard H. Kilbourne, Clinton, for appellees.
   LOTTINGER, Judge.

This is a suit for damages allegedly resulting from an invasion of the right of privacy of the petitioners, William D. Sou-der and his wife, Mrs. Mildred Sessions Souder. The defendants are the Pendle-ton Detectives, Inc., and their alleged principal, Hartford Accident & Indemnity Co. The defendants each filed an exception of vagueness as well as an exception of no right or cause of action. Although the Lower Court did not consider the exception of vagueness, the exception of no right or cause of action was maintained, and petitioners’ action was dismissed. Petitioners have appealed.

The petition alleges that on or about July 12, 1954, petitioner, William D. Souder was injured while working for W. C. Boat-ner the sole owner and operator of Boat-ner Motor Company at Clinton, Louisiana. At the time of the accident, the defendant, Hartford Accident and Indemnity Insurance Company was the workmen’s compensation insurer of Mr. Boatner. The petitioner further alleges that the insurance company consistently denied the compensation claims of petitioner, and that it engaged the services of the Pendleton Detectives Inc., “to shadow, trail, investigate, observe and secure information pertaining to the activities of petitioner as well as to harass and invade his personal safety, comfort and privacy, and generally to cause petitioner worry and anxiety.” Article 12 of the petition provides as follows:

“That these two detectives continued to observe, watch., trail, shadow, eavesdrop, and peek at petitioners during May and June, 1955; that these two detectives, acting within the scope of their authority and employment in all of their activities constantly shadowed, watched and eavesdropped on petitioners, using binoculars on some occasions; that they took pictures of them without their permission or authority ; that they trespassed upon petitioners’ property without their consent or permission; that they watched them in their home by peeking through their windows and otherwise harassing and otherwise invading the privacy of petitioners.”

Article 13 of the petition alleges that “ * * * the detectives made known to the public, the community and to petitioner’s neighbors that they were shadowing, following and investigating the activities of petitioners' * *

Throughout the petition is the allegation that the actions of the insurance company, through the said detective agency, were calculated to harass and invade the personal safety, comfort and privacy of the petitioner.

The Lower Court sustained the exception of no right or cause of action, without passing on the merits of the exception of vagueness. The petitioners have appealed.

It is fundamental law that the allegations of the petition must be accepted as true in passing on the exceptions filed by the defendant. Therefore, in determining whether the exception of no right or cause of action was correctly maintained below, we must accept all allegations of fact contained in the petitioners’ petition.

The right of privacy has been defined as “the right to be let alone” and as “the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity.” We feel that a complete résumé of this important right has been set forth in a recent opinion of this Court; in Hamilton v. Lumbermen’s Mutual Casualty Co., La.App., 82 So.2d 61. On the other hand, however; we must consider the right of our insurance companies to investigate any and all possible claims which might be filed against them. In the instant case, there- was a possible suit for workmen’s compensation benefits against the insurance company and its assured. We, therefore, feel that the insurance company and its agents, the detective agency, had a right to make such investigation as it deemed necessary, provided that such investigation was conducted within legal bounds.

Now the petition alleges that the investigation was conducted in such a manner as to harass, invade, and embarrass the petitioner. It further alleges that the detectives trespassed upon the property of petitioners, and peeked into their windows. Now, accepting as true, that the detectives trespassed upon the property of petitioners and peeked into their windows, it appears that the detectives might have been guilty of a crime under our “Peeping Tom” statute. LSA-R.S. 14:284 defines a “Peeping Tom” as “ * * * one who peeps through windows or doors, or other like places,. situated on or about the premises of another for the purpose of spying upon or invading the privacy of persons spied upon without the consent of the persons spied upon. It is not a necessary element of this offense that the ‘Peeping Tom’ be upon the premises of the person being spied upon.” The penalty provided is a fine of not more than five hundred dollars, or imprisonment for not more than six months, or both.

Now, according to the allegations of the petition, there was certainly raised such facts as would indicate a possibility of criminal prosecution. It certainly would follow that, if a possible crime was committed, a suit in civil damages would be present, provided that damages could be proved. We, therefore, feel that the petition did allege a cause of action, i. e. an invasion of the petitioners’ right of privacy. Whether or not petitioners can prove such invasion, and damages resulting therefrom, is another matter. We, therefore, feel that the Lower Court was incorrect in maintaining the exception of no right or cause of action, and its judgment in this respect will be overruled.

As stated above, the Lower Court did not determine the merits of the exception of vagueness. Same should now be disposed of first by the Lower Court.

For the above and foregoing reasons the judgment of the Lower Court will be reversed and the exceptions of no right or cause of action filed by defendants will be dismissed. The case is remanded to the Lower Court to be disposed of according to law and the defendants to pay the cost of this appeal.

Judgment reversed and case remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Emily Dyer DE LEE v. Maggie Dyer PRICE.
    No. 4233.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    J. Peyton Parker, Jr., Baton Rouge, for appellant.
    Watson, Blanche, Fridge, Wilson, Pos-ner & Thibaut, A. Leon Hebert, Baton Rouge, for appellee.
   LOTTINGER, Judge.

This is a suit for the reduction of an excessive donation. The petition recites that the plaintiff, together with the defendant, are the natural children of one Anna Chainey Dyer; that the decedent was survived by nine natural children, including petitioner and defendant; that at the time of her death, the decedent owned an undivided 4Mo interest in and to a certain tract of land situated in the Parish of East Baton Rouge, together with an undivided Mo interest in and to another tract of land situated in the Parish of East Baton Rouge, together with a 4%o interest in and to certain live stock shown and described in the inventory and ap-praisement filed in the Succession proceedings of the decedent; that the decedent died testate and that her will contained the following donation mortis causa: “Second, I give and bequeath unto my daughter, Maggie Dyer Sullivan, as an extra portion, all of my right, title and interest in and to that tract of land containing approximately 146.5 acres located in Section 41, T5S, R2E, Greensburg Land District, and being more particularly described in Judg^' ment of Possession in my late husband’s succession, which bequest is made in consideration of my said daughter having nursed and supported me since the death of my husband, and of having paid a substantial portion of the purchase price for said property when it was originally acquired.”

It is further alleged that the above mentioned donation exceeded the disposable portion of the estate of decedent, Anna C. Dyer and constituted an infringement of the legitime. It is further set forth that although termed a remunerative donation there was in fact no consideration for the donation and that the defendant did not pay a substantial portion or any portion of the purchase price of the property when it was originally acquired. Alternatively, it is pleaded that if some services were rendered by the defendant or that if a portion of the purchase price was paid by the defendant, that the value of the object or the interest donated exceeded by one-half the value of such charges of services. The petition concludes with a prayer seeking the reduction of the donation to the disposable portion and decreeing petitioner to be the owner of an undivided one-ninth of two-thirds (% of 2/z) of the estate and property of the decedent at the time of her death.

The defendant filed an exception of lis pendens which was argued in the court below and sustained. The case is now before us on an appeal taken by the plaintiff from the judgment sustaining the exception.

The defendant filed in this court a motion setting forth that on October 13, 1955, judgment was rendered in the 19th Judicial District Court for the Parish of East Baton Rouge in the matter entitled “Robert W. Dyer et al, v. Emily Dyer DeLee” No. 53,695 of the docket of said court and that pursuant to such judgment which was signed on the 19th day of October, 1955, the property described in the plaintiff’s petition was sold by Bryan 'Clemmons’, Sheriff of the Parish of East Baton Rouge. It is further set forth that subsequently the property was partitioned in kind among the purchasers by an act of partition dated April 21, 1956, and that as a result thereof, the question presented by this appeal has become moot.

We observe from the brief filed by ap-pellee that the exception of lis pendens is based on the contention that the instant matter involves the same cause of action, is between the same parties and has the same object as involved in the matters entitled “In the Matter of the Succession of Anna Chainey Dyer, Deceased” No. 8587 of the Probate Docket and “Robert W. Dyer, et al, v. Mrs. Emily Dyer DeLee,” No. 53,695 of the Civil Docket of the 19th Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana. An examination of the record reveals that neither of these matters was introduced in evidence. Consequently, it is impossible for us to determine whether the mentioned matters do involve the same parties, the same cause of action and have for their object the same thing involved in the instant matter. Likewise, it is impossible for us to determine from the record as made up whether those things which are alleged to have taken place in the motion to dismiss the appeal actually transpired or not.

In view of the above and foregoing, it is ordered, adjudged and decreed that this matter be remanded to the 19th Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana, for the introduction of evidence and such other offerings as may be admissible in connection with the plea of lis pendens and the motion to dismiss the appeal. Said record after the introduction of such evidence is to be returned to this court on or before November 15, 1956, otherwise said appeal to be dismissed at plaintiff’s costs.

Case remanded.


author: TATE,'Judge.

text:
    Rudolph MORRIS, Plaintiff-Appellee, v. Sam WILLIAMS, Defendant-Appellant.
    No. 4222.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    Blanchard & Blanchard, Donaldsonville, for appellant.
    Glynne A. Long, Donaldsonville, for ap-pellee.
   TATE,'Judge.

This suit is to recover the balance allegedly due plaintiff-seller for the sale of a car to defendant-purchaser. Defendant appeals from the District Court’s award to plaintiff of $244.15.

Suit was filed on May 13, 1954. Exceptions of vagueness were filed both to the original petition and to a supplemental amending petition. After several continuances obtained by defendant, the second exception of vagueness was finally tried and overruled on June 27, 1955; but exceptions of no right and cause of action were filed the same day. These latter were immediately set for trial, and they were overruled on June 28, 1955. On October 10, 1955, on motion of counsel for plaintiff, the matter was fixed for trial on the merits on December 16, 1955.

When the case was called for trial on the merits, counsel for defendant objected to going to trial on the ground that issue had been joined neither by an answer filed by defendant, nor a preliminary default entered by plaintiff. The District Court overruled these objections, the trial proceeded, and judgment was rendered against defendant.

Defendant-appellant urges reversal of the District Court judgment, since it was rendered after a trial on the merits ordered over defendant’s objection, when issue had not been joined by answer or default. “No valid judgment may be rendered against a party with whom issue has not been joined.” Eppinett v. Mydland, La.App. 1 Cir., 81 So.2d 566.

Art. 357 of Louisiana Code of Practice of 1870 provides:

“The cause is at issue when the defendant has answered, either by confessing or denying the facts set forth in the petition, or by pleading such dilatory or peremptory exceptions as he is bound to plead in limine litis, pursuant to the provisions of this Code.”

Defendant relies upon Commerical National Bank v. Smith, ISO La. 234, 90 So. 581 and Parker v. Baker Gasoline Company, Inc., 3 La.App. 711, to support his contention that issue had not been joined by the overruled exceptions of no right and cause of action. These cases hold that such peremptory exceptions do not join issue so as to inhibit amendment of the original petition, Article 419, C.P., since such exceptions need not be pleaded in limine litis, and it is only these latter exceptions which join issue under Article 357, C.P., above set forth in full.

With unimpeachable logic, plaintiff-ap-pellee replies that then according to the literal wording of Article 357, above, issue was joined herein by the prior filing of the exceptions of vagueness, since the exception of vagueness is a dilatory exception which must be pleaded in limine litis, Articles 332, 333 C.P., Foster & Glassell Corp. v. Ackel, La.App., 166 So. 885.

There is some substance to plaintiff-appellee’s argument that the judgment should be affirmed since issue was technically joined, and defendant had ample notice of the date of trial and was represented thereat (although admittedly objecting to trial thereof). Since the function of an answer is merely to define the issues, and since the only positive requisite of the Code of Practice is that issue be joined and not that an answer be filed, it has been suggested that even in the absence of an answer issue should be considered tacitly joined by the prior pleadings, and a resulting judgment should be sustained. See Note, “Pleading — Tacit Joinder of Issue— Waiver of Requirement of Answer — Articles 357, 359, Louisiana Code of Practice of 1870,” 10 Tulane Law Review 649.

But why should an overruled or abandoned exception of vagueness, filed at an earlier stage of the proceedings and perhaps to clarify the petition so as to justify sustaining of a peremptory exception to be filed subsequently, save from nullity this judgment on the merits in the absence of answer or default, whereas the subsequent peremptory exception does not? That is, the filing of the exception of vagueness is as little (or as much) practical reason to justify validity of the judgment in favor of plaintiff as is the filing of defendant’s exception of no cause of action.

Although Article 357 is certainly susceptible to the interpretation urged by plaintiff-appellee, it is our opinion, considering this codal article in the context of its historical meaning and the jurisprudence, that the mere filing of a dilatory exception does not by itself constitute sufficient joinder of issue to support a valid judgment in the absence of answer, default or defendant’s waiver thereof.

As set forth in the Comment, “The Method and Time of Pleading Dilatory and Declinatory Exceptions,” 1 La.Law Review 174, containing an excellent legislative history of the pertinent codal articles, Article 357 (with wording identical to its present) within the context of the Code of Practice of 1825, provided that issue was expressly joined only by filing of an answer; which answer might contain dilatory or peremptory exceptions, then permitted to be filed with the answer. By Section 23, Act 53 of 1839, defendants were prohibited from filing such exceptions with the answer, which separate enactment was in 1870 added as a second paragraph to Article 333 of the Code of Practice of 1870, without apparent consideration of its possible effect upon Article 357, C.P., both of which codal articles were otherwise retained unchanged from the Code of Practice of 1825.

It was not until comparatively recently that the courts squarely held that issue was joined by the filing of the dilatory exception, rather than the answer, for purposes of deciding whether petitions could be freely amended or on the other hand “after issue joined” only “with the leave of the court * * * provided the amendment does not alter the substance of his demand”, Article 419, C.P.; see Comment, supra cit., 1 La.Law Review 174 at 178—179; see Self v. Great Atlantic & Pacific Tea Co., 178 La. 240, 151 So. 193 at pages 196-197; Diamond T. Motor Trucks, Inc. v. Heck, La.App., 13 So.2d 512; Elfer v. Mintz, La.App., 7 So.2d 416.

Numerous cases can be found which held invalid judgments rendered on the ground that issue had not been joined by answer or legal default: Coltaro v. Lotuso, 147 La. 150, 84 So. 528; Chopin v. Freeman, 145 La. 972, 83 So. 210; St. Amand v. Long, 25 La.Ann. 164; Succession of Whitten, 9 La.Ann. 417; Schnaufer v. Schnaufer, 4 La.Ann. 355; New Orleans and C. R. Co. v. Patton, 2 La.Ann. 352; Laville v. Rightor, 17 La. 303; Perret & Gaily v. Keill, 15 La. 209; Calvet v. Cal vet, 8 Mart. (N.S.) 301; Dorsey v. Kirkland, 8 Mart. (N.S.) 283; Beatty v. Wright’s Estate, 7 Mart. (N.S.) 285; Miles v. Oden, 6 Mart. (N.S.) 211; Bird v. McMicken, 5 Mart. (N.S.) 515; Woodward v. Braynard, 6 Mart. (O.S.) 572; Broussart v. Trahan, 2 Mart. (O.S.) 133; Bentley v. Barrett, La.App., 146 So. 349; Robinson v. Enloe, 10 La.App. 435, 121 So. 320; Moore v. Day Building Supply Co., Inc., 3 La.App. 575 and 3 La.App. 648.

Likewise, the several cases which support the legal principle recently stated in Levenson v. Chancellor, La.App., 68 So.2d 116 at page 122, as “The filing of an answer or entry of default before rendition of a judgment is waived where a litigant appears and participates in the trial”, accept the premise that a valid judgment may be rendered only as a result of joinder of issue by reason of answer, default, or' waiver thereof by going to trial without objection as to the lack thereof. Ducote v. Ducote, 183 La. 886, 165 So. 133; Henderson v. Hollingsworth, 158 La. 921, 105 So. 14.

See also Cross on Pleading (1885), 181— 189, for a general discussion of the early jurisprudence concerning this question.

However, it can be argued that no case above cited concerns proceedings in which exceptions filed were clearly required to be filed in limine litis, so as to join issue within the literal meaning of article 357. (Nor could any case be found holding that filing of such an exception did indeed join issue so as to support the validity of a judgment thereafter rendered in the absence of answer, default, or waiver thereof by defendant.)

The 'Coltaro caáe, 147 La. 150, 84 So. 528, for instance, involved earlier overruling of an exception of no cause of action and a plea of estoppel, both peremptory in nature and not required to be filed in limine litis. In Ducote v. Ducote, 183 La. 886, 165 So. 133, the earlier exception overruled was that of lis pendens, a declinatory exception; which under the express provisions of Article 358, C.P., does not join issue. The prior exception in Chopin v. Freeman, 145 La. 972, 83 So. 210, was a plea of prescription, which likewise need not be filed in limine litis. In Bentley v. Barrett, La.App., 146 So. 349, the earlier proceeding was a rule to dissolve the attachment, which does not join issue within the meaning of Article 357.

Nevertheless, we do not feel that the Legislature intended to change the historical requirement that no judgment is valid without joinder of issue by answer, default or waiver thereof. We feel that Article 357, C.P., as originally enacted and as consistently applied up to the present reflects a legislative intention that in the absence of default no cause is at issue for purposes of trial upon the merits until an answer has been filed.

The Bentley case for instance contains the comment at 146 So. 350: “This is a suit for a moneyed judgment * * *. A suit of this character could not be fixed for trial before issue is joined. Code of Practice, Art. 463 * * It is to be noted that Article 463, Code of Practice, does not contemplate trial of the cause until after “the answer has been filed in a suit.”

This court realizes that our ruling herein is technical and delays further the final disposition of a matter already long protracted through patently dilatory tactics. However, it should be noted that plaintiff herein was not without a remedy in that upon defendant’s continued failure to file an answer, it was open to plaintiff to enter a preliminary default and after the legal delays to prove up his case. (See, also, if defendant’s obstructive conduct had consisted of staggered filing of a string of peremptory exceptions, Egan v. Hotel Grunewald Co., 134 La. 740, at page 747, 68 So. 698.)

For the above and foregoing reasons, it is ordered, adjudged, and decreed that the judgment herein be annulled and reversed, and that the case be remanded, for further proceedings according to law. Cost of this appeal to be paid by plaintiff-appellee; all other costs to await final determination of these proceedings.

Annulled and remanded.

      . Of course, the statement that no judgment on the merits is valid unless issue has previously been joined by answer or default, or unless defendant has waived these requirements by going to trial without objection, is limited in its application to suits by ordinary process. Ex-ecutory or summary process by definition omit the formal requirements of ordinary process; see, e. g., Articles 98, 734, 756.

      . The index to Professor MaeMahon’s authoritative treatise, Louisiana Practice, does not indicate that the so-called plea, of, estoppel is a recognized form of exception in Louisiana.

        . Art. 358, Code of Practice: “When the defendant pleads' some declinatory ex- • ception, without answering to the merits, there is no issue joined.”


author: ELLIS, Judge.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK v. William Thadious CALLICOTT.
    No. 4225.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      C. Alvin Tyler, W. Frank Gladney, Baton Rouge, for appellant.
    Richard H. Kilbourne, Clinton, for ap-pellee.
   ELLIS, Judge.

Plaintiff is seeking to recover the alleged unpaid balance on an insurance premium. The defendant filed an exception of no cause and no right of action which was argued and submitted to the Lower Court on March 21, 1955, and on that day sustained. Without having a formal judgment signed counsel immediately moved for and was granted a devolutive appeal returnable to this court on April 6, 1955, contingent upon his furnishing bond in the sum of $50. The appeal was dismissed ex proprio motu by this court as .being premature. See 83 So.2d 671. Formal judgment was signed on the 9th day of May, 1955, and counsel, pursuant to the dismissal by this court, on the 9th day of January, 1956, secured an order of appeal returnable to this court on the 7th day of February, 1956, upon the furnishing of bond in the amount of $50.

In compliance with the order of the court counsel furnished bond and filed in this court the complete record on January 20, 1956. The case is now before this court on the second appeal, to which counsel for defendant and appellee has filed a motion to dismiss on the ground that the record, not having been filed within the time set in the first order of appeal from the unsigned judgment, which said appeal was dismissed by this court, that the appeal must be considered as abandoned, citing Dupierris v. Sparicia, 164 La. 290, 113 So. 851. The law enunciated in this case is perfectly sound. It merely holds that where the appellant perfects his appeal and fails to file the transcript on or before the return day or within the delays of grace following the return day, he is conclusively presumed to have abandoned the appeal. The appellant in this case did not perfect his appeal, he could not perfect his appeal because he had no signed judgment from which he was appealing. The order granting the appeal as well as the fixing of the return day and the giving of bond were useless as they were based upon no signed judgment. In other words, the entire proceeding was null and void and without effect.

The appellant has properly secured a signed judgment, a valid order of appeal fixing the bond and return date, has filed a bond in accordance therewith and has filed the transcript in this court within the return date ordered by the District Judge.

The motion to dismiss is without merit and is overruled.

Counsel for plaintiff has set forth in his petition the complete grounds upon which he claims additional premium from the defendant as a result of an insurance contract with all endorsement and written additions to the policy being declared upon in the petition and annexed to and made a part of the petition and all being in the record. Also attached to and designated in the petition as well as on the endorsement itself is Plaintiff’s Ex. No. 6 which is a bill from the insurance company showing the total amount of premiums due under the policy additions thereto and endorsements thereafter added to the policy, all of which are annexed to the petition. It shows total premiums of $2,440.78 due, with the payment of $1,952.64, leaving a balance of $288.14, the amount plaintiff is claiming from the defendant.

Counsel for defendant and ex-ceptor argues that plaintiff took upon itself the right of increasing the premiums on the contract of insurance without any consideration of the rights of the defendant. In support of this argument he cites the case of Isadore v. Washington Fire & Marine Insurance Co., La.App., 75 So.2d 247, 249, in which the Court held:

“It is elementary that modifications or changes in a contract must be made with the mutual consent of the parties to the contract. There must necessarily be a meeting of the minds of the parties and one party to the contract may not alter its terms without the assent of the other party. And this rule applies with equal force to policies or contracts of insurance. The insurance company in this instance, in the absence of securing the consent of the assured, had no more legal right to withdraw coverage on one of the insured buildings than the insured would have to alter the contract without obtaining the consent of the insurer so as to include in its terms additional property. In 44 C.J.S., Insurance, § 281, p. 1120, we find the following explanation:
“ ‘Whether the parties have actually altered or modified a particular policy or contract of insurance is a question of fact. In order that there may be a modification, there must be an agreement therefor, supported by a consideration, and neither party has a right to modify the contract without the consent of the other party. * * *

The legal proposition cited is undoubtedly correct but it is inapplicable to the pleadings of this case. According to the allegations of the petition, and attached to the original insurance policy issued by plaintiff to defendant and forming part of the agreement or contract between the parties, is an “Automatic Coverage Indorsement” (P-5) under the terms of which plaintiff insurer provided liability coverage “to all automobiles acquired by the Insured during the - Policy period and used for business purposes”, as well as to the fleet of motor vehicles owned by defendant insured at the .time the policy was isr sued. This endorsement further provided that the defendant insured must maintain a record of additions to and deletions from the fleet of automobiles insured, and that for the “Premium”: “The insured shall pay premiums computed on the amount of liability .under such , Policy at its inception date and the Company shall annually thereafter compute the amount of premium earned at the end of such period. Full settlement of the net amount of additional or return premium shown to be due at the end of each such period shall be immediately due and payable.”

Thus the defendant insured specifically consented to pay any additional premium due for liability coverage automatically afforded additional vehicles acquired by him during the policy year, if the allegations of the petition are true, and thus cannot be heard to complain that the insurer increased his premiums without his consent, at the end of the policy year after having received the additional insurance protection for which he agreed to pay. Such a policy provision, permitting payment initially of an estimated premium based on estimated experience, but requiring determination of the actual premium based on the actual experience at the end of the policy year after audit, with appropriate refund, or additional premium due, was upheld without question in American Employers’ Insurance Co. v. Furr, L^. App., 5 So.2d 343.

■ In the present. case, the allegations of plaintiff’s petition‘if'taken as true, which they must be under the law for the purpose of this exception, allege a cause of' action, and he is entitled to have a trial on the merits.

It is therefore ordered that the judgment of the District Court be reversed and the exception of no cause of action be overruled and the case remanded to the District Court for further proceedings in accordance with law.


text:
    Estelle Burton WILLIAMS v. The TRAVELERS INSURANCE COMPANY, Earl A. Marcelle, d/b/a Marcelle’s Esso Service Station et al.
    No. 4234.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    L. C. Parker, J. Peyton Parker, Jr., Baton Rouge, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellees.
   ELLIS, Judge.

This suit is • brought in forma pauperis to recover damages sustained in an automobile accident. The plaintiff Estelle Burton Williams, was a passenger in a truck being driven by her husband when it collided with another vehicle at about 12:25 a. m. on January 9, 1955. The husband’s employer, his liability insurer, and one Robert J. Burns, were joined as defendants.

The District Court dismissed plaintiff’s suit at her cost, but the judgment makes no mention of the defendant Burns. From this judgment the plaintiff has appealed.

The plaintiff was riding on the front seat of a panel truck being driven by her husband, which was traveling north on the Perkins Road in East Baton Rouge Parish. The driver of the truck observed a vehicle approaching from the north with only one head light. When the vehicles approached the same spot, the other automobile left its right side of the road and struck the left rear fender of the truck, causing it to run into a ditch and over-turn, when the plaintiff was injured.

The plaintiff herself testified she saw the oncoming automobile a very short distance before the collision; that her husband was driving on his right side of the highway at a slow rate of speed and that there was nothing whatsoever he could do to avoid the accident. Her testimony further shows that there was nothing unusual, other than the one light, to give her husband any warning of an impending collision, and that he could not pull any further to his right since there was a. line of trees to prevent this maneuver; also that the truck turned over immediately after the collision.

The testimony of Williams himself, shows that he was driving in a careful and prudent manner, noticed the approaching vehicle, pulled to his right, and when the approaching car was about 20 feet away it pulled to its left and struck the left rear fender of the truck, knocking it into the ditch, where it over-turned. He stated positively that he could have done nothing to avoid the accident and was not warned in any manner that the approaching car would turn to its left.

There were two other witnesses who were riding in the rear of the panel truck in a double rocking chair. The testimony of one, Willie Lee Burton, is that he noticed the car approaching immediately before the accident and that it had only one head light; also that Williams was driving in a careful and prudent manner; that Williams pulled the truck to its right just before the collision; and that the truck was struck on the rear fender and over-turned almost immediately. Josephine Collins, the other passenger, testified she noticed the car approaching with only one head light; that the accident happened almost immediately; that Williams pulled the panel track over to the right and that his speed was reasonable.

The only other witness was an officer of the Police Department of Baton Rouge. He stated he was never able definitely to identify the driver of the vehicle which collided with the truck and could not locate the point of collision between the vehicles from any physical evidence.

The whole record discloses absolutely no negligence itpon the part of Williams and the judgment is correct insofar as it so found.

The judgment makes no mention of the defendant, Burns, although an answer was filed by Robert J. Bums, who denied all of the allegations concerning his liability upon lack of sufficient information to justify a belief. We are of the opinion, since he was never identified as the driver of the other vehicle, that the judgment should absolve him also from any liability. Appellant’s brief states it “could not. be established to the satisfaction of any Court” that he was the driver of the other vehicle.

The suit was brought in forma-pauperis, but the judgment assesses costs against the plaintiff. This is incorrect since no objection to this proceeding appears in the record.

For the reasons assigned, the judgment of the District Court is amended by dismissing plaintiff’s suit as to all defendants, and further by absolving the plaintiff of the payment of any costs whatsoever.


author: TATE, Judge.

text:
    H. E. FRAZIER, Plaintiff-Appellant, v. Rubin H. MUSE, Defendant-Appellee.
    No. 4226.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    Leon A. Picou, Jr., St. Francisville, for appellant.
    Richard H. Kilbourne, Clinton, for appel-lee.
   TATE, Judge.

Plaintiff appeals from judgment in favor of defendant. Defendant filed in this Court a motion to dismiss the appeal.

The record reflects: Plaintiff by oral motion on January 13, 1956, devolutively appealed to this court, upon the District Court’s oral ruling in favor of defendant at conclusion of the trial. Written judgment was not signed, however, until January 16, 1956, or three days subsequent to the order of appeal.

“ ‘It is now the well-settled jurisprudence of this State, that no appeal lies from a judgment before it is signed; in such a case the judgment is inchoate, and the appeal premature, C.P. Arts. 546, 555, 558;”’ (cases cited) Greene v. Baynard, 194 La. 409, 193 So. 690 at page 691; Fidelity and Casualty Company of N. Y. v. Callicott, La. App. 1 Cir., 83 So.2d 671; see also Poole v. Home Insurance Company, La.App. 1 Cir., 71 So.2d 416; Perrodin v. Tillson, La.App. 1 Cir., 52 So.2d 306; Article 565, C.P. The motion to dismiss the appeal is granted.

For the reasons given the appeal herein is hereby dismissed at the cost of the plaintiff-appellant.

Appeal dismissed.


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    Elmer O. FORTENBERRY v. Roy K. MITCHELL and Anthony St. Pierre.
    No. 4252.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      Ben N. Tucker, Hammond, for appellant.
    Allen B. Pierson, Ponchatoula, for ap-pellees.
   LOTTINGER, Judge.

This is a suit wherein plaintiff, Elmer O. Fortenberry, seeks to recover from Roy K. Mitchell and Anthony St. Pierre the sum of $245.66 with 5% interest from May 31, 1954. The petition recites that the amount sued for is the balance of the purchase price for piling and timber sold by the plaintiff to the defendants. It is set out that on May 31, 1954, the defendant, Roy K. Mitchell, delivered to the plaintiff a check for the sum of $596 drawn on the Citizens National Bank in Hammond, Louisiana, which was ostensibly in payment for the value of timber and piling removed from plaintiff’s property. This check was dishonored upon presentation to the bank because of insufficient funds. The further allegation is made that on or about July 3, 1954, the defendants delivered to the plaintiff two checks drawn by the defendant, Anthony St. Pierre, one for the sum of $210.34 and the other for $140 or a total of $350.34 on account of the indebtedness, leaving a balance of $245.66, which is the amount sued for.

The defendant, Roy K. Mitchell, did not appear or file an answer or any other pleadings. The defendant, Anthony St. Pierre, answered the plaintiff’s petition denying that he had purchased any timber or piling from the plaintiff, but admitting, however, that he had delivered the two checks described in the plaintiff’s petition to the latter, not for any indebtedness due by him to the plaintiff, but for the account of the said Roy K. Mitchell. The further allegation is made in the answer that the relationship between St. Pierre and Mitchell was solely that of a purchaser of piling which Mitchell would deliver to St. Pierre from time to time.

As Mitchell made no appearance, a default judgment was rendered against him. After trial of the case on the merits, judgment was also rendered against the defendant, St. Pierre, and the matter is now before us on an appeal taken by the latter.

The trial judge rendered written reasons for judgment in this matter wherein he concluded as follows: “The court thinks that all the facts in the case would lead one to believe that Mitchell and St. Pierre were working together and that St. Pierre, having received the poles and piling, and having paid for a portion of them, is liable for the balance. The court does not believe that St. Pierre would have committed himself as far as he did in this matter unless there was a joint venture between him and Mitchell and Mitchell was acting as his agent, and he had held him out to the plaintiff as such.”

We regretfully disagree with the findings of the trial judge. The defendant, St. Pierre, called on cross examination by counsel for plaintiff, testified that he was engaged in the timber and pole business; that he knew Roy K. Mitchell (the other defendant) and that he had had dealings with him for some twelve to eighteen months. He admitted that his machinery was used in the operation but testified that he was paid by Mitchell by the foot to do the work and that he was actually buying lumber from Mitchell pursuant to an order together with specifications. He stated further that he personally owes the plaintiff nothing because he has had no dealings with him whatsoever, and in fact had never seen the plaintiff until Mitchell’s check was returned by the bank.

On direct examination, the defendant testified very definitely that he did not buy timber from the plaintiff and that Mitchell was not employed by him. He stated that he was in the piling business and that he would buy piling from various persons, paying for same by the lineal foot. His testimony was that this was exactly the type of deal that he had with Mitchell. He went further and said that after he had agreed to purchase the piling from Mitchell, that the latter came to him stating that he did not have the proper equipment to remove the timber and that when that occurred, it was agreed that St. Pierre’s tractor would go over and bunch, load and haul it for a certain price per lineal foot. He stated that he did not supervise the cutting of the timber and repeated that he had never seen the plaintiff before the “trouble with Mitchell came up.” This defendant went on and stated that he had never authorized Mitchell to represent him in the purchase of timber but the latter part was on his own account with a view of manufacturing it and selling it to him as a manufactured product. This defendant’s version of what transpired is that the plaintiff came to him after Mitchell’s check was returned and asked him “to help him out to get his money out of Mitchell.” This defendant stated that he told the plaintiff that he would do what he could to get the money, but that he did not promise to pay him anything out of his own funds and that what was actually paid to the plaintiff by him came from monies which were due Mitchell by him. It was brought out on cross examination that before handing these two checks to the plaintiff, he saw Mitchell and asked him if he would agree to having him follow this course of procedure and the latter assented thereto.

The plaintiff stated that he owns the land from which the timber and piling was cut and that he saw the defendant St. Pierre’s trucks thereon. He stated that when the deal was made to sell the timber that he, his neighbor, Mr. Plughes and Mitchell were present. He stated that Mr. St. Pierre was not there and that at that time he had never seen him. It is obvious from a reading of this man’s testimony that no deal was made with the defendant, St. Pierre, for the most that he could say was that the latter had been recommended to him by his neighbor. He stated that when it developed that Mitchell’s check was worthless he went to the defendant St. Pierre and asked him to help out.

The plaintiff’s neighbor, a Mr. Elvin Hughes, testified, stating that he had sold piling to Mitchell and that he had been paid for same by Mitchell with the exception of the last check which had been paid by the defendant, St. Pierre. He corroborated the plaintiff’s testimony to the effect that he "recommended” the two defendants to the plaintiff. He also stated that when Mitchell’s check was returned, that he accompanied the plaintiff to see St. Pierre and that the latter did not promise to pay the amount due but said that he would see that the plaintiff got his money. He stated very definitely that when he made his deal to sell his piling, that it was made with Mitchell, not with the defendant.

The above and foregoing encompasses the testimony which was introduced. While it is with reluctance that we reverse a trial judge’s finding on a question of fact, we feel compelled to do so in the instant case. The petition recites that the petitioner sold and delivered to the defendants the piling and timber for which he was not paid in full. From the above and foregoing, it is obvious that there is nothing to show that this piling was sold by this plaintiff to the defendant, St. Pierre. Nor can we find any evidence sufficient to warrant our concluding that Mitchell was either the agent or employee of St. Pierre. The latter testified without equivocation that he purchased piling as a product from Mitchell and while it is true that his equipment was used in the operation conducted by Mitchell on the plaintiff’s land, he stated that this was done for a price. We are unable to conclude from the mere fact that he purchased piling from Mitchell, the fact of Mitchell’s using his equipment or the whole surrounding circumstances that Mitchell was either an agent or employee of the defendant, St. Pierre, or that there was any such relationship existing between the two men which would justify holding St. Pierre liable in solido with Mitchell.

For the reasons assigned, the judgment appealed from is reversed insofar as the defendant Anthony St. Pierre is concerned and it is ordered, adjudged and decreed that the plaintiff’s suit as to the latter be dismissed at his costs.

Judgment reversed.


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    Hubert SEALS, d/b/a Jackson Cleaners, v. HARTFORD ACCIDENT and INDEMNITY COMPANY and Feliciana Electric & Plumbing Company, Inc.
    No. 4223.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    Percy & Macmurdo, Baton Rouge, for appellant.
    Leon A. Picou, Jr., St. Francisville, for appellees. ■

   LOTTINGER, Judge.

This is a suit by Hubert Seals, d/b/a Jackson Cleaners, against the Feliciana Electric & Plumbing Company, Inc. and their liability insurer, Hartford Accident and Indemnity Company for damages allegedly caused by the employees of the Felici-ana Electric Company when they walked on the roof of a building belonging to the plaintiff in the installation of a television set and antenna. It is set out that the antenna was installed on April 1, 1955, and that it was later moved to another location with the result that some of the workmen walked on the plaintiff’s roof causing same to leak. After trial on the merits in the court below, judgment was rendered in favor of the plaintiff awarding to him the total sum of $1,445. The matter is now before us on an appeal taken by the defendants.

In their brief before this court, the defendants did not seriously contend that the leaks in the plaintiff’s roof were not caused by the actions of the employees who set up the television antenna. Indeed, the testimony is abundantly clear to the effect that the plaintiff’s roof did not leak before the antenna was set up, and that it did begin to leak almost immediately after the antenna was installed. The plaintiff testified that in 1954 during the month of December, he had one Otis Havard to go upon the roof and coat it with asbestolene, in order to preserve it. He further stated that until the time that the television set was installed he had had no trouble with the roof and that the first time it rained afterwards, the water poured into his place of business.

One Bennie Wilson, a carpenter, testified that he had examined the plaintiff's roof previous to the installation of the television antenna and that the application of the asbestoslene was proper and that a good job had been done. He stated that previous to the installation of the television set, he had heard of no complaints as to the roof leaking but that after -the set was installed that the roof did begin to leak.

Clement Palmer testified that he frequented the plaintiff’s cleaning establishment and that prior to April of 1955, he heard no complaints about the roof leaking but that subsequently it had leaked a lot.

The real question presented is that of quantum. The trial judge broke down his award as follows:

Damages to the roof $650.00
Cost of repairs to inside ceilings 350.00
Worry, inconvenience and frustration 250.00
Repairs already made by plaintiff 195.00

There were two witnesses who testified with respect to the costs of repairing the roof and the inside ceilings. The record shows that the building in question was used by the plaintiff both for living quarters and for his place of business. It had on it in one part a tin roof and in the other part an asphalt shingle roof. Mr. Wilson, the carpenter, stated that to get new metal for the tin roof would cost $200; that new asphalt shingles would cost $135; that his labor for tearing off the old roof and replacing it with new material, would be $155. He stated further that he had been paid approximately $40 to $45 by the plaintiff for work done in an attempt to repair the roof by the application of tin foil. The record does not show exactly the cost of the tin foil that was used in an attempt to repair the roof, but Wilson stated that there were 25 seams 28 feet long to cover and that with the overlap it took 30 feet of foil to cover each seam which should total 750 feet of foil. He stated that there were 200 feet of foil in a roll, and that he believed it cost $2.00 per roll. He testified that he used two buckets of plastic cement which cost from $1.35 to $2.35 per bucket.

The other witness who testified with respect to repairing the plaintiff’s roof and ceiling was a Mr. A. E. McGraw who stated that he had been a building contractor for some 35 to 40 years and that for the last ten years he had been engaged mostly in the repair business. According to Mr. Mc-Graw, the labor and material for replacing the asphalt shingles over the living quarters would total $184; the labor and material for replacing the metal roof $343; to replace three pieces of sheet rock would be $26 and to paint the inside would be $92.80, or a total of $645.55 to repair the damages which he found.

From the above and foregoing, it will be seen that McGraw’s estimate for the roof would total $527 whereas that of Wilson would total $490. It is apparent, therefore, that the trial judge’s award for this item of damage is excessive and accordingly same will be reduced to the sum of $490.

The next item of damage allowed by the trial judge is the $350 for repair to the inside ceilings. We are unable to find in the record any proof which would show that it would cost that much to repair the ceilings and the only satisfactory testimony on this point would be that of Mr. McGraw, who stated that he would repair the sheet rock for $26 and paint the ceilings for the sum of $92.80. Accordingly, the sum of $118.80 will be allowed for the damages caused the ceilings.

While the trial judge allowed the sum of $195 for repairs already made by the plaintiff, we do not believe that the record contains any proof showing that the plaintiff expended that amount. As shown above, the plaintiff paid Mr. Wilson from $40 to $45 for his labor on the roof. Estimating the cost of the foil at $12.00 together with two buckets of cement at $2.35 a bucket would total the material at $16.70 which, added to the labor at $45 would amount to $61.70, which amount will be allowed for the money actually spent by the plaintiff.

The amount of $250 awarded the plaintiff for “Worry, inconvenience and frustration” would not appear to be unreasonable. The record shows without contradiction, that the roof leaked badly over a period of months and that the plaintiff, who was in the dry cleaning business, was caused considerable worry and work shifting around the clothes of his customers in order that they would not get wet, and in drying them out after some of them had gotten wet.

Counsel for defendants argue very strenuously that as the tin roof was installed in 1939 and the asphalt shingles in 1946, that the award for damages to the roof should be based on a depreciation basis. We do not know how depreciation can be taken into account and at the same time make full restitution for the plaintiff. It is evident from the record that previous to the walking on the roof by the defendant’s employees, the same did not leak or give the plaintiff any trouble whatsoever. Be that as it may however, the defendant has not shown to our satisfaction the amount of depreciation that should be applied. Consequently, we believe that he is entitled to the cost of a new roof without regard to depreciation of the old one.

For the reasons assigned, the judgment appealed from will be amended to award the plaintiff damages as follows;

Damages to roof $490.00
Damages to Ceilings 118.80
Repairs actually expended by plaintiff 61.70
Worry and inconvenience 250.00
Or a total of $920.50

Except as herein amended, the judgment appealed from is affirmed, and plaintiff to pay the cost of this appeal.

Judgment amended and as amended affirmed.


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    Joe DEMARCO, Plaintiff-Appellant, v. Mrs. Pearl DUPLANTIS, Defendant-Appellee.
    No. 4251.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    W. S. Rownd, Hammond, Ponder & Ponder, Amite, for appellant.
    Reid & Reid, Hammond, for appellee.
   TATE, Judge.

The very narrow question presented for our determination by this appeal is whether a co-owner can without joining his co-owners institute a possessory action against one allegedly disturbing his possession of a tract of land. Plaintiff co-owner appeals from judgment below sustaining an exception of no right of action and dismissing his suit.

Plaintiff alleged real and actual possession of a certain tract of. land for more than one year previous to an alleged disturbance of his possession by defendant, who allegedly erected a fence and cut some timber from this tract immediately prior to suit. Plaintiff prayed for judgment “restoring and quieting your petitioner in the possession of said property, and ordering said defendant to remove said fence from said property.”

It is stipulated that plaintiff owned only a 214oth interest in indivisión in the tract in question.

Articles 43-60, Code of Practice, treat of the real actions known as the petitory action and the possessory action; the former of which seeks recognition of ownership, the latter only of possession.

Article 47, C.P., relating to possessory actions only, provides:

“The possessors entitled to bring these actions are those who possess as owners.
“Persons entitled to the usufruct or to the use of a real estate, and others having real rights growing from such real estate, may also bring their action, ■when disturbed in the enjoyment of their rights.” (Italics ours.)

Able counsel for defendant-appellee strongly contends that a co-owner, having merely a limited ownership in the property, does not possess as owner. It is argued that real and actual possession as owner must be “dominion and control of the property * * * the right of absolute possession of sovereignty,” Ciaccio v. Hartman, 170 La. 949, 129 So. 540, at page 541. (This case held only that the petition’s allegation of “real and actual possession” sufficiently denoted a factual allegation of control or active possession as owner, so as not to be defective as merely a legal conclusion.)

But if a co-owner does not possess as owner, in what capacity does he possess ? While no co-owner can possess any portion of the property to the exclusion of the other co-owners, all co-owners thereof have no equal right to possess and use the property, Stinson, v. Marston, 185 La. 365, 169 So. 436, Loret v. Fugler, La.App. 1 Cir., 71 So.2d 384.

Defendant-appellee further cites Article 45, C.P., specifically granting the right to an owner in indivisión to institute a peti-tory suit, and argues that by implication a similar right, was withheld from such co-owner to institute a possessory action by the failure of Article 47, C.P., above-cited, to set forth with similar specificity such right of action. It was with this argument that the able.District Court agreed.

However, we feel that the broad provisions of Article 47, C.P., include co-owners within those authorized to institute suit as being both-among “those who possess as owners” and those “having real rights” in such estate, Article 47, C.P. In addition, Article 15, C.P., provides that any party “having a real and 'actual interest” may bring his action “as soon as that interest arises”.

Defendant-appellee points out the confusing questions which may arise from a co-owner instituting suit for possession, without joining his co-owners. If he possesses outside the limits of his title, does he possess- for himself only or for his co-owners also? If defendant herein has subsequent to institution of this suit (9 years ago) had possession of the land in controversy for sufficient time to acquire title by prescription; does plaintiff’s interruption by lawsuit, Article 3518, LSA-C.C., of this prescription as to his own 2j4oth interest, also interrupt such acquisitive prescription as to the 16Aoth interest owned by the co-owners who are not parties to this action? If not, could the finality of a judgment in favor of plaintiff requiring removal of the fence nine years and eleven months after this fence so placed by defendant in good faith reliance upon acquisition of a deed transla-tive of title, thus prevent defendant acquiring title of the 1%oth interest owned by the co-heirs (who did not themselves legally interrupt prescription) by the ten year’s acquisitive prescription provided by Article 3478, LSA-C.C.?

These interesting questions might indicate that the preferable procedure would be to join all co-owners as parties in instituting a possessory action. However, we do not believe that they justify our holding plaintiff co-owner without right to sue, in view of the codal authorization. Perhaps the doctrine that a co-owner is presumed to possess for his co-owners and possesses the whole and not just his undivided interest, Chef Menteur Land Co. v. Mercier, 129 La. 1042, 57 So. 329, affords some help in resolution of these perplexing problems, which we do not feel called upon to decide at this time.

For the above and foregoing reasons, the judgment of the District Court sustaining defendant’s exception of no right and cause of action and dismissing plaintiff’s suit, is hereby reversed and annulled; and this case is remanded to the trial court to be proceeded with in accordance with law. Costs of this appeal to be paid by defendant-appellee; all other costs to await assessment until final determination of these proceedings.

Reversed and remanded.


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    Suzette THOMAS v. ST. PAUL MERCURY INDEMNITY CO.
    No. 4240.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.
    Hynes, Mathews & Lane, Baton Rouge, for appellánt.
    Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for appellee.
   LOTTINGER, Judge.

This matter is before us on an appeal taken by the plaintiff, Suzette Thomas, from a judgment rendered by the Lower Court in favor of the defendant, St. Paul Mercury Indemnity Company, rejecting the demands of the plaintiff and dismissing her suit.

The suit involves a claim by the plaintiff under the Workmen’s Compensation Law of the State of Louisiana, LSA-R.S. 23:-1021 et seq., arising out of the death of her son, one Henry Thomas, while in the course and scope of his employment. The plaintiff alleged that she was dependent upon the deceased within the purview of the compensation statute, and thus is entitled to the benefit provided for dependents.

The case presents no dispute concerning the accident and resulting death of Henry Thomas; furthermore, there is no dispute concerning the insurance coverage by the defendant. The only point at issue is whether or not the plaintiff was in fact dependent upon the deceased such as to entitle her to the benefits provided by the Workmen’s Compensation Law of our state.

One Elmo Robb, manager of Robb’s Drugs, Inc., testified that the decedent, Henry Louis Thomas, was employed as a delivery boy by his concern and that his regular salary as such amounted to the sum of $28.50 per week. This witness testified further that the decedent claimed four dependents in connection with the withholding regulations of the United States Government. His records did not, however, reflect the names of these dependents.

Suzette Thomas, the plaintiff, and mother of the deceased, testified that her husband, Willie Thomas, the father of the deceased, had been dead approximately twelve years; that the deceased was the issue of the marriage between the plaintiff and her deceased husband, Willie Thomas. She testified that of this marriage nineteen children were born of which thirteen lived and that, at the time of his death, Henry Louis was the second to youngest, being then eighteen years of age. All of her other children, she testified, had families except the last two, Henry Louis and Herman, the youngest, who was single. The plaintiff testified that she had no job and that for her support she was entirely dependent upon Henry Louis, Herman and the Welfare Department of the State of Louisiana. Her other children, she stated, all had families and were not able to contribute anything to her support. The funds which she received or was receiving at the time of the death of the deceased, amounted to the sum of $33 which she received every month from the Welfare Department, $15 a week which s'he received from Henry Louis and $10 a week which she received from Herman. The witness testified that these sums were received by her from the sources stated on a regular basis. The plaintiff admitted that at the time of the death of Henry Louis, he was not actually living with her but was living with a girl called Pearl, but that in spite of this, he would visit her home each day and even kept his clothes- at her home. She stated that Henry Louis had lived with Pearl for some three months before his death and that they had an apartment together. She stated that she herself lived in a home which belonged to her daughter, one Alvina Ferdinand, who lived in California. Her further testimony was to the effect that she and Herman (and Henry Louis prior to the time that he moved away to live with Pearl) occupied one side of this house and that Mary Thomas, Amelia Rumsey and Jack Rumsey occupied the other side of this house. Amelia Rumsey is her daughter and so is Mary Thomas. She stated that rent was paid to Alvina in the amount of $24 a month, $12 coming from the occupants of either side of the house. She stated that the $12 which she paid was contributed by her sons, Henry Louis and Herman. The utilities were paid, she stated, by Amelia Rumsey and Mary Thomas. At the time of trial she stated that she was still on the Welfare and that Herman was still contributing $10 a week for her support.

On cross-examination this witness testified that the $12 rental money came from the amounts contributed by her two sons and was not in addition thereto. She repeated that the deceased had lived with his concubine for some three months prior to his death, but stated that he would take at least one meal with her each day. She repeated that he h'ad never moved his clothes from her home and testified that she did not know whether he supported -his concubine or not, she having never visited their apartment. She did admit, however, that after Henry Louis met his death, Herman removed some clothes belonging to him from the apartment which he shared with the said Pearl.

One Mary Thomas testified, stating that the plaintiff was her mother and confirming the testimony of the latter to the effect that she had thirteen children, Herman and Henry Louis being the youngest two. She stated, as did the plaintiff, that the plaintiff and Herman (and the deceased when he was alive and before he moved away to live with Pearl) occupied one side of the house while she, Amelia and the latter’s husband occupied the other side. She also stated that Henry Louis had moved away and lived with Pearl approximately three months prior to the time he died. She stated further that the plaintiff did not work and that she was supported by the Welfare and the contributions of the two sons. She stated further that the two sons made regular contributions, Henry Louis giving the amount of $15 and Herman the amount of $10 each week. Further, she stated that after Henry Louis had moved away, that he continued making the weekly payments as he had when he lived with his mother.

On cross-examination, this witness stated that she was always around the house and that she actually saw Henry Louis make the $15 contribution each week. She stated that the plaintiff had some of his clothes at the apartment which he shared with Pearl and that he ate most of his meals there, only occasionally eating at his mother’s.

Herman Thomas testified that he was the youngest of the family, that his mother received $33 per month from the Welfare Department and $10 and $15 per week, from him and Henry Louis, respectively, when the latter was alive. He stated that Henry Louis had made his contributions of $15 per week for a period of approximately six years before his death and that he continued to make these payments after he moved away and lived with Pearl. This witness stated that in addition to the salary received by Henry Louis, he also received substantial tips as a delivery boy. On cross-examination, this witness stated that to all intents and purposes when Henry Louis went to live with Pearl he moved out of his mother’s house and that they lived together as man and wife in their apartment. He also stated that during this time Henry had an automobile, which he (Herman) and Henry Louis both used.

Edna Johnese, testifying on behalf of the plaintiff, stated that the latter was her mother and corroborated previous testimony relative to the family. She stated that the house belonged to the sister in California and that she collected the rent and sent it to her. This witness went on and stated that she saw Henry Louis and Herman, respectively, give the sums of $15 and $10 to her mother each week, and that insofar as Henry Louis was concerned, that had been going on ever since he had gotten out of high school. In addition to the income received by the deceased from his employment from the drug store, she stated that he made extra money by cutting lawns and that she had on occasion given him $3 to cut her own lawn. The $15 weekly contributions by Henry, she stated, were continued after he had moved from his mother’s house and lived with Pearl.

It was stipulated that the testimony of Amelia Rumsey, were she called to the stand, would be merely cumulative.

The defendant called as its witness the decedent’s concubine, Pearl Riley. She stated that she had been the common law wife of I-Ienry Louis for some two and a half years during which time they lived at the home of her mother, and that on November 28, 1954, they moved into the apartment which they occupied at the date of Henry Louis’ death. She testified that the apartment was unfurnished, had four rooms and was furnished with furniture bought by them. The rent she stated was $28 per month of which she and Henry Louis paid $14 and the remaining $14 of which was paid by two other persons living in concubina ge, one Henry Collins and one Mary Prater. The groceries for the couple were purchased principally at Dave Owens’ grocery near by and according to this witness, they ran from $16 to $18 per week. She stated that the decedent was making from $25 to $28 per week at the time of his death but that she knew nothing of any extra money which he earned by mowing lawns. She further stated that she earned $16 a week as a house servant and that the deceased, on each payday, would give her most of what he had earned and that they would take the money, put it together and pay the bills. She also testified with reference to the automobile that was owned by the decedent, the fact that he used it and the fact that oil and gas was bought and paid for. She stated further that after the bills were paid that there was no money left over. Insofar as contributions to the mother of the decedent were concerned, this witness stated that he never told her whether or not he gave his mother any money but that she was sure that if he did give her money, she would have known about it. On cross-examination, this witness admitted having signed a statement wherein she recited that she knew that the decedent was giving his mother part of his salary and while she did not know what amount he gave her, there was a definite contribution each payday. 'She explained the conflict between the contents of the written statement and her testimony above referred to as a result of the fact that when she gave the statement, the plaintiff had told her to say it in that manner and that she was nervous and scared and complied with the plaintiff’s wishes.

On redirect examination she stated that she did not really know whether Henry Louis ever gave his mother any money or not.

Miss Stat Sumrall, Welfare Visitor for the East Baton Rouge Parish Department of Public Welfare, testified that she was familiar with the case of Suzette Thomas. She had a record of the amounts of payments received by the latter during the two year period previous to the trial, and while she could not divulge the information therein contained, she verified what the attorneys had found from a checking of these public records. It would serve no useful purpose to detail the various amounts received by the plaintiff from this agency, but we might observe that the payments made to her were more or less as testified to by the plaintiff herself.

One Feltus Payne testified that he was the owner of the apartment occupied by the decedent and his concubine. He stated that they moved in on the 29th day of November, 1955, that they shared the apartment with Mary Prater and Henry Carter, and that he was paid the sum of $28 per month rent. Pie testified that he saw the deceased and Pearl every day, that they ate there at the apartment and that frequently he would eat with them. While they would occasionally fall a week behind in their rent, he nevertheless stated that Plenry Louis was "a good pay master.” He stated that Henry Louis’ clothes were kept at the apartment, that his meals were cooked by Pearl, that while she was not there during the lunch hour, the deceased would frequently fix his own lunch, and, in short, that he lived there day and night.

David Owens, the owner of the grocery store previously referred to, testified that he knew the decedent and his concubine, Pearl Riley, and that they purchased groceries from him. He stated further that they spent in the neighborhood of between $15 and $20 per week for groceries. This witness, while called by the defendant, stated that the decedent was “awful good to his mother,” and that he paid on occasions for groceries for her. He went further and stated that when the plaintiff’s Welfare allowance was cut and she ran her bill up to around $70 that the decedent himself reduced it over a period of months to the amount of $7.

Mary Prater testified that she was the common law wife of Henry Carter and that they lived in and shared the apartment rented by the decedent and his concubine. She confirmed the fact that the rental was $28 per month, of which each couple contributed the amount of $14. She testified that she knew that the decedent and Pearl were paying for their furniture; that the decedent actually lived there and ate three meals a day, two of which were cooked by Pearl. She testified that she did not know as a fact whether or not the decedent made any contributions to his mother. She did state that the couple dressed well and would go out on parties and use the automobile together. In rebuttal Herman was recalled to the stand and testified that he was present when the statement previously referred to was taken from Pearl Riley and that she was not coached by the plaintiff or persuaded in any way to state the facts she did. He went further and said that Pearl did not say or indicate that she was frightened and that she never denied the truthfulness of the statements made by her.

The plaintiff herself was again placed upon the stand and she too testified that she had no discussion with Pearl previous to the latter’s giving her statement.

The sole question presented by this appeal is one of fact, i. e., whether or not the evidence adduced establishes that the plaintiff was dependent upon her deceased son within the meaning and intendment of LSA-R.S. 23:1252. A reading of the above and foregoing will reveal that this question can be determined solely by the parol testimony of the various witnesses who testified at the trial. As is so often the case, the testimony is, on many points, in direct conflict. The question then resolves itself into a matter of who was telling the truth and who was not. The trial judge, while he did not render written reasons for judgment, ruled against the plaintiff and, undoubtedly, his ruling was based on the fact that he did not believe the testimony given by the plaintiff and those who testified on her behalf.

While we certainly are unable to say that the trial judge committed manifest error in disregarding the testimony introduced by plaintiffs and accepting that introduced by defendant to prove that decedent made no substantial contribution to support of his' mother, plaintiff herein, nevertheless we find uncontradicted in the testimony of defendant’s own witness, David Owens, that the decedent during the year before he was killed reduced a past due account

by his mother from $70 to $7, from about May 1954 up until the time of his death, which prevented his payment of the balance according to Owens. We thus find it un-contradicted that in the year prior to his death, decedent contributed $63 to support his mother.

LSA-R.S. 23:1231 provides in part:

“* * * If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

If the plaintiff mother were wholly dependent upon decedent' at the time of his death, she would be entitled to 32J4% of his weekly wages, .LSA-R.S. 23:1232. At the time of his death, decedent was employed at a weekly wage of $28.50 per week, 32}4% of which amounts to a compensation rate of $9.26 per week. Under the formula of compensation benefits for partial dependency, plaintiff is to receive the same proportion of $9.26 per week, as decedent’s total contribution (i. e., $63) to her support during the year prior to his death, bear to his annual earnings or the rate thereof during the year prior to his death, Sandidge v. Aetna Casualty & Surety Co., La.App. 1 Cir., 29 So.2d 522 (certiorari denied); Little v. Crow-Edwards Lumber Co., 7 La.App. 304. Since under the most favorable computation possible to claimant, she is entitled to less than 6% of the compensation rate of $9.26, or to compensation at a rate of 55^ per week, it is apparent that she is entitled to the minimum weekly compensation payable under the Act, of $3 per week, see LSA-R.S. 23:1202, which amount will be awarded to her for the 300 weeks duration, LSA-R.S. 23:1231, as in similar circumstances was done in Lunlcin v. Triangle Farms, Inc., La.App. 1 Cir., 24 So.2d 213; Powell v. Paramdunt-Richards Theatres, Inc., La.App., 22 So.2d 859. Although plaintiff claims recovery of medical and funeral expenses incurred by reason of her son’s injury and death resulting from the accident in the course of employment, there is no proof in the record as to such expenses, and this portion of the claim is non-suited.

For the above and foregoing reasons, it is ordered that the judgment appealed from is hereby reversed, annulled, and set aside, it is ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Suzette Thomas, and against the defendant, St. Paul Mercury Indemnity Company, awarding her compensation at the rate of $3 per week for a period not to exceed 300 weeks from March 30, 1955, with legal interest upon each unpaid installment from date of- delinquency until paid. Defendant-appellee is cast with all costs of these proceedings.

Reversed and rendered.


text:
    BATON ROUGE CIGARETTE SERVICE, Inc., v. Lester BLOOMENSTIEL.
    No. 4246.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for appellee.
   LOTTINGER, Judge.

Petitioner, Baton Rouge Cigarette Service, Inc., is the applicant in rule for a preliminary injunction against its former employee, Lester Bloomenstiel, praying that defendant show cause why a preliminary injunction should not issue restraining him from using confidential information obtained from applicant’s records in the solicitation and enticement of customers away from the petitioner. Petitioner further prayed that after due proceedings the rule be made absolute and a permanent injunction issue. The Lower Court rendered judgment in favor of defendant, and dismissed the proceedings. Petitioner filed a devolutive appeal.

The facts show that Lester Bloom-enstiel was formerly the Manager of the Baton Rouge Cigarette Service, Inc., a Louisiana corporation domiciled in the Parish of East Baton Rouge, Louisiana, and engaged in the business of distributing and selling cigarettes through automatic vending machines. He served as manager of the company from the date the business was incorporated until he resigned on November 11, 19S5, a period of about seven years. All of the capital stock of the corporation is owned by interests represented by Mr. Thomas A. Vaughn, of New Orleans, who exercised general supervision over the operations of the business. Mr. Bloomenstiel was solely responsible, as the manager of the company, for the general conduct of the corporation’s business, including the solicitation of customers, the determination of commissions, and the maintenance and service of the machines installed.

A copy of Bloomenstiel’s employment with the company was introduced into evidence. Said contract provides, in part, as follows:

“Sixth: Bloomenstiel agrees that for a period of five (5) years after the termination of his employment hereunder, however such termination may come about, he will not, directly or indirectly, be engaged or interested as owner, partner, stockholder, trustee, employee, agent or in any other capacity in the business of owning, selling, leasing, operating or in any manner dealing in or with cigarette vending machines in East Baton Rouge Parish in the State of Louisiana.”

On November 10, 1955, Bloomenstiel resigned his position with the company. Although he offered a two weeks’ notice, Mr. Vaughn told him that he could leave immediately, and Mr. Bloomenstiel left on November 11, 1955. The following day the following notice was published in the State Times, a daily newspaper published in Baton Rouge:

“To My Friends and Customers:
“I am no longer connected with the Baton Rouge Cigarette Service. My future plans anticipate the possible establishment of my own business.
“Sincerely,
Lester Bloomenstiel
Home Phone WA 1-5628”

Within two weeks following his resignation, approximately 36 of Baton Rouge Cigarette Service’s best customers had can-celled their contracts with petitioner and had engaged vending machines owned and operated by a company formed and owned in part by Bloomenstiel.

Bloomenstiel admitted talking to two and possibly three customers of the petitioner company while he was still in its employ, relative to his new business venture, and further admitted that, previous to resigning, he ordered approximately 150 cigarette vending machines for his own use.

The petitioner introduced evidence to the effect that, prior to his leaving the employ of petitioner, Bloomenstiel went through their records and made a list of their best customers with the intention of enticing these customers away from petitioner after he had opened his own business. While Mr. Bloomenstiel admitted making many lists in his job with petitioner, he claims that these lists were made for the purpose of mailing checks to customers, repairing defective vending machines, calling on customers whose sales had fallen off, etc. He admits that he did make a list of petitioner’s customers from memory after he had left their employment, however, petitioner failed to prove that such a list was made prior to his leaving his job with petitioner.

Petitioner filed this suit to enjoin and prohibit the defendant from soliciting and enticing petitioner’s customers and from using or employing any of the confidential information obtained from the books and records of petitioner and any of the lists of petitioner’s customers, copies of business records or any other trade secret belonging to petitioner secured by Bloomenstiel while in the employ of petitioner. The Lower Court rejected the petitioner’s demands and dismissed the suit. Petitioner has taken a devolutive appeal.

There is no question in our minds that Paragraph 6 of the employment contract which is hereinabove quoted is absolutely null and void and against the public policy of our state. Act 133 of 1934, now LSA-R.S. 23:921, provides:'

“No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court.”

Prior to the enactment of the above quoted statute, the Supreme Court in the case of Jones v. Ernst & Ernst, 172 La. 406, 134 So. 375, 376, said:

“* * * We ]jnow 0f no law, and have been referred to none, which prohibited them at the end of any monthly period from leaving defendant’s employ. On the contrary, we think that in consonance with the spirit of free labor they ought to be maintained in their right to do so. Certainly no action lies against plaintiff merely because he chose to employ them after they had left defendant’s service. And this is so, even though plaintiff and defendant’s former employees during their term of employment planned to engage in a competing business at the expiration thereof. Every person has the right to better his condition if he can lawfully do so.” (Italics ours.)

The public policy of the state, as expressed in said statute, has been upheld by this Court in Nelson v. Associated Branch Pilots, 63 So.2d 437, decided by this Court, and in Martin-Parry Corp. v. New Orleans Fire Dection Service, 221 La. 677, 60 So.2d 83, 84. '

Both parties cited the Martin-Parry Corp. case, the facts of which are not identical to the ones presently before us. In that case, the contract of employment provided:

“ * * for a period of two (2) years after the termination hereof, disturb, hire, entice away, or in any other manner persuade any employee or dealer of the Company to'discontinue his relation to the Company as an employee or dealer, as the case may be’ ”.

In discussing other cases, Justice Mc-Caleb, who was the organ of the Court, said:

“* * * the employees agreed that, upon the termination of their employment, they would not engage in a business in competition with that of their employer, either for themselves or as employees of others, for a specified time. This sort of agreement, which is vastly different in nature from the covenant in the case at bar, has been deemed to be violative of public policy since 1934, when the Legislature, by Act 133, declared all such agreements to be void. However, it is to be noted that the rulings in Blanchard v. Haber and the other cases (which were decided before the enactment of Act 133 of 1934), that noncompetitive clauses in employment contracts are void, are predicated on the premise that such stipulations are potestative conditions.”

That Louisiana is not alone in holding such contracts violative of public policy is shown by an article appearing in 27 Tulane L.Rev. 366, which says:

“A non-competition agreement ancillary to a contract of employment is unenforceable in most common law states today except for the protection of trade secrets, lists, and confidential matter, or in cases in which the services of the employee are unique or-highly skilled. * * * Moreover, non-competition agreements in .employment contracts have been made illegal by statute in a number of states including Louisiana.”

However, the petitioner claims that its suit is based on an exception to the general rule to the effect that a former employee may be enjoined from using lists of customers, copies of such lists, or other records' with respect thereto, which he obtained by reason of his employment, in; the solicitation of his former employer’s’, customers. As to this contention, we do not feel that the petitioner has proved that Bloomenstiel is using a list which he made while in the employ of petitioner.

The facts show that Bloomenstiel was manager of- the petitioner’s business'' for some seven years. It was his .duty during this period of time, to solicit customers, determine commissions, and make payment of commissions. The petitioner had some 800 customers at the time Bloomenstiel terminated his employment. As he was so intimately connected ■ with the • business, we feel safe in stating that. Bloomenstiel did not have to make a list' of the customers, we feel sure that he himself must haVe known the names of practically all of the customers. Mr. Fred Matthews Who sue-' ceeded Bloomenstiel as manager, and had only worked in said capacity for a few weeks prior to trial of the matter, testified that, given time, he could name sixty or seventy percent of the customers of petitioner. Certainly, after having worked for a period of some seven years, he could have done better than that.

There was some testimony to the effect that Bloomenstiel made a list of some ISO customers of petitioner with the avowed purpose of soliciting their business for his own company after termination of his job with petitioner. Mr. Bloomenstiel emphatically denied making a list of petitioner’s customers for said purposes. He testified that, in his position as manager, it was often necessary for him to make lists of customers. The purposes for such lists were to contact customers whose sales were lagging, to service or repair vending machines, to compute commissions and for payment of commissions. We do not believe that it was necessary for Bloomenstiel to make such a list as is claimed by petitioner, and petitioner has failed to prove that one was made and is now in the possession of Bloomenstiel.

The petitioner has quoted from the Restatement of the Law of Agency, Vol. 2, Sec. 396, as follows:

“Sec. 396 Using Confidential Information After Termination of Agency
“Unless otherwise agreed, after the termination of the agency, the agent:
“(a) has no duty not to compete with the principal; and is subject to a duty to the principal not to use or disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty. The agent may use general information concerning the method of business of the principal and the names of the customers retained in his memory, if not acquired in violation of his duty as agent.”

We believe that the situation presented in this case comes squarely under the rule italicized, and, therefore, hold that the Lower Court was correct in refusing to grant the temporary injunction.

Petitioner contends that the Lower Court erred in dismissing its action. It contends that the hearing below was confined to the rule to show cause why a preliminary injunction should not be granted, and had nothing whatsoever to do with the determination of the merits of the permanent injunction. The minutes of the Lower Court indicate that the rule nisi was tried on the preliminary injunction only. Petitioner further contends that it had not agreed to try the case on the merits. We find no stipulation in the record that the case was to be tried on the merits. The defendant, however, contends that the trial below was on the merits of the whole case because the evidence filed in this record consists of a package of documentary offerings and 70 pages of transcript of testimony. There were six witnesses examined during the trial and the testimony on all six witnesses dealt with the merits of the issue involved. Defendant further contends that the question presented to the Lower Court was not whether there should be an injunction pending trial on the facts as the case was tried on the facts, and we are further informed that briefs on the law and facts were submitted to the Lower Court just as they were submitted to us. Defendant further contends that the sole object of this suit was to obtain an injunction, or, in other words, the injunction was not ancillary. We are inclined to believe that the defendant has merit in his contention and that the whole case was tried on the merits and that same should be disposed of accordingly since the main cause of action was an injunction and that the injunction itself was not ancillary, 43 C.J.S. Verba, Injunctions, § 198, p. 913. However, it is not within the province of this court to make law but to interpret same. We find in McMahon Louisiana Practice, Vol. 2, Page 1281 et seq., a quotation as follows:

“Objection has been voiced to this provision by some lawyers on the ground that ■ it entails the possibility of ■ two trials before the final determination of the case, a situation which it is claimed did not exist under the practice established by the Code of Practice, thereby imposing additional labor upon counsel, and additional inconvenience to litigants.
“My own personal experience, which has been rather extensive in this particular field, is that where there has been a full hearing on a rule nisi, and where the sole object of the suit is the obtaining of an injunction, a case seldom goes so far as a trial on the merits. Each party usually presents the full facts and the law of his case in the first instance, and the conclusion arrived at, either in the lower court or on appeal, is so decisive that further litigation is unnecessary. My observation also has been that in practice there seldom is a case of any importance which does not require the appearance in court of counsel and litigants a number of times before a conclusion is reached.”

We further note the rule set forth in 43 C.J.S. Verba, Injunctions, § 199 d (3), p. 921, is:

“* * * Unless the parties otherwise agree, the cause may not be finally determined on the evidence submitted at the hearing on the application for the preliminary injunction. * * *”

That there is a technical distinction between a hearing on the preliminary injunction, Louisiana State Board v. Martindale, La. App., 83 So.2d 544, and a hearing on the merits, Louisiana State Board v. Wimberly, La.App., 85 So.2d 679, is seen by the points unsuccessfully raised by appellants in these two cases. There are different delays and pleadings, LSA-R.S. 13:4062' et seq. 'and different types of evidence are admissible (affidavits in the preliminary injunction)* and also technically there is a different, burden of proof, the preliminary injunction just requiring a prima facie showing, the permanent injunction by the preponderance of the evidence, see First National Bank of Abbeville v. Hebert, 162 La. 703, 111 So. 66, 69, cited in McMahon Louisiana Practice, Volume 2, Page 1290. ,The comment in this last case is applicable here:

“Because of the circuitous and anomalous practice that is required by Act 29 of 1924 [La. R.S. 13:4062 et seq.] * * * this case has been virtually tried and disposed of on its merits, although, ostensibly, all that was tried or decided was the rule to show cause why the preliminary injunction should not issue. The refusal of the district judge to grant a preliminary injunction * * * was tantamount to a rejection of the demand for annullment of the sale; and our reversal of the judgment, after considering all of the evidence on the merits of the case, will be tantamount to an allowance of the demand for an-nullment of the sale. The courts cannot help that, and obey the statute.”

Also in the case of Ridge Park v. Police Jury of Jefferson Parish, 210 La. 351, 27 So.2d 128, 129, the Supreme Court through Justice Fournet, now Chief Justice, said:

“Obviously the court was unauthorized to dismiss the plaintiff’s suit on the merits since the only matter tendered to the court and submitted to it for adjudication under the rule nisi was ‘why a preliminary injunction should not issue in this cause as prayed for.’ * * *
“ ‘It is the approved rule that the granting or refusing of a preliminary injunction is merely an interlocutory judgment designed to preserve the existing status pending a trial of the issues on the merits of the case.’ ”

In this latter case the Supreme Court overruled the judgment of the Lower Court dismissing the plaintiff’s suit on a rule nisi and remanded same.

We are inclined to believe that there may have been a full hearing on the merits of this injunction but due to the absence of an agreement that the case was being tried on the merits, the plaintiff may not have brought forth all of the evidence available, and, for that reason, we are in no position to state definitely that the case was tried on the merits.

Therefore, for the above and foregoing reasons the judgment of the Lower Court is reversed insofar as it dismisses plaintiff’s suit; in all other respects the judgment is affirmed. The appellees are to pay the costs here and all .other costs are to await the final determination of this suit. The case is remanded to the Lower Court to be proceeded with according to law.

Judgment amended and as amended affirmed.


author: PER CURIAM.

text:
    Caroline MILLER, a widow, Appellant, v. Charles PANOSSIAN, Appellee.
    Supreme Court of Florida. Special Division B.
    July 13, 1956.
    Henry Ransburgh, Miami, for appellant.
    Dixon, Dejarnette, Bradford & Williams, Miami, for appellee.
   PER CURIAM.

The only point for determination here is whether an instrument executed by the plaintiff-appellant in favor of one of two alleged joint tort-feasors was, in legal effect, a “release” so as to operate as a discharge of the other joint tort-feasor, the appellee here and defendant below, from liability for injuries suffered by the plaintiff in an accident involving the defendant-appellee and the other alleged joint tort-feasor.

The instrument in question, styled a “Covenant Not to Sue,” is in all material respects identical with that set forth in Martin v. Burney, 160 Fla. 183, 34 So.2d 36, which was said by this court in Atlantic Coast Line Railroad Co. v. Boone, Fla.1956, 85 So.2d 834, 842, to be “A good example of a covenant not to sue”.

Accordingly, the judgment appealed from is reversed under the authority of the above cited cases and the cause remanded for a new trial.

Reversed and remanded.

TERRELL, Acting C. J., ROBERTS and O’CONNELL, JJ., and CROSBY, Associate Justice, concur.


author: O’CONNELL, Justice.

text:
    MARION COUNTY, a political subdivision of the State of Florida, Appellant, v. Homer GARY et al., Appellees.
    Supreme Court of Florida. Division B.
    July 13, 1956.

      Virgil L. Milbrath and Frank C. Decker, Ocala, for appellant.
    Carl F. Crossley, Ocala, for appellees.
   O’CONNELL, Justice.

Appellant, hereinafter referred to as the County, was the plaintiff below. Appellees were defendants in the court below and will be so referred.to herein.

In the Court below, County filed a complaint in chancery, seeking to require the defendants to remove a fence from a portion of a road right-of-way allegedly dedicated by defendants’ predecessor in title. The facts material to the disposition of the issues raised in this appeal were stipulated between the parties.

A petition was filed with the County in Í950 seeking establishment of a public road over designated lands. The petition contained an agreement by petitioners to donate a right-of-way over lands owned by them in event of the establishment of such a road. A road had theretofore and did then exist along essentially the same route as that described in the petition, the variance being that the western terminus of the existing road ran about thirty feet south of the center line of the road petitioned for. It is the land of the defendants, lying north of the existing road, that would be affected by the change in the western terminus of the road which provoked this litigation.

The defendants’ lands were among those involved in the petition, and the petition was signed by their predecessor in title, W. P. Gary. W. P. Gary died in 1952. Defendants are his heirs.

There is no controversy over the fact that such petition constituted an offer to dedicate. But no affirmative action was taken in the matter until the Board of County Commissioners, in 1954, accepted recommendation of viewers appointed by it, that the road be established, and notice of the intention to establish the road was posted (presumably in accordance with 343.-05 F.S.A.). When.this notice was posted the defendants objected to the establishment of the road. No order establishing the road appears from the. record before us, to have been adopted by the County, either before or after defendants’ objections were made.

The question to be decided is whether the offer of dedication made by defendants’ predecessor in title was ever accepted by the County so as to be binding on defendants. The trial court obviously found that there was no acceptance. We agree that the trial court was correct.

The burden to establish dedication is on the party asserting it. Roe v. Kendrick, 146 Fla. 119, 200 So. 394. The County did not, according to the record before this Court, accept the offer of dedication prior to the objection to the establishment of the road by the defendants. We do not construe the acceptance of the viewers’ recommendations as being an acceptance of the offer of dedication.

Our cases establish the principle that an offer of dedication, on common-law principles, may be revoked at any time before acceptance. City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726; Brooks-Garrison Hotel Corp. v. Sara Inv. Co., Fla., 61 So.2d 913. We construe the defendants’ objections to the establishment of the road as being a revocation of the offer of dedication.

Upon this ground alone, it would appear that the decree of the court below should be and is therefore affirmed.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.