text:
    Goldie YAWN v. H. C. CRAFT et al.
    No. 4130.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.
    Bass & Nichols, Lake Charles, for appellant.
    Edgar Perkins, Jr., DeQuincy, for ap-pellees.
   ELLIS, Judge.

This is a workmen’s compensation suit seeking compensation for and during plaintiff’s period of disability not to exceed 400 weeks. It is alleged that on or about August 5, 1954, the plaintiff in attempting to roll a log with a cant hook suffered an injury when the hook slipped, causing him to strain his abdomen and side. He claims that as a result of this accident he sustained a. right indirect inguinal hernia. The answer denied generally all the allegations of the petition but, as set out in the lower court’s written reasons for judgment, the only dispute is whether the hernia which the plaintiff has is a result of an accident which occurred in the course of his employment.

Upon the trial below, judgment was rendered in favor of the defendants and against the plaintiff rejecting his demands, and the plaintiff has appealed.

The plaintiff is a barber by trade and it appears he had never done any other kind of work until the morning of, August 5, 1954, when he was employed by one of the defendants. He worked for about two or three hours driving a mule team and loading logs upon a log truck and hauling them about 100 yards to a skidway at a saw mill. Having no experience in such work a fellow employee was assigned to show the plaintiff how to load the logs.

The plaintiff himself testified that this fellow employee stayed with him but a short while after which he began loading the truck himself, hauling the logs to the skidway where another employée helped unload them. He states that he returned with the team to the log yard and placed two logs on the truck when he discovered that they had been loaded too close to the mules pulling the truck, and that when he tried to unload them with a cant hook the hook slipped out of the log causing the handle to strike him in the stomach and upon the shin.

On the other hand, a fellow employee testified that the plaintiff was in his view during the whole period that he worked and that at no time did he have a cant hook in his hand; that there was but one hook on the job and it was kept at the skidway; that there was none at the log yard where the plaintiff maintains the accident happened.

Two fellow employees stated that only two loads of logs were hauled while the plaintiff was at work; that the plaintiff hauled only one load, the second having been made by another employee.

None of the other employees heard the plaintiff make any complaint although the plaintiff maintains after he was injured he went to the saw mill and asked for a job there since he couldn’t do the work to. which he had been assigned. Also, although the plaintiff rode with two witnesses from the mill to a town several miles distant, stopped en route and had some beer, hothing was said about his having been injured.

Several witnesses were introduced upon behalf of the plaintiff who testified that they had known him several years while he was a barber and that he seemed to be in good health, but since August 5, 1954, the date of the alleged accident, he had walked with a cane and complained of pains in his stomach. This testimony is corroborated by his wife.

A physician testified that the plaintiff sought his treatment on August 5, 1954, and gave about the same history of the accident as the plaintiff testified to upon the.trial. This doctor found the plaintiff suffered from a right inguinal hernia and a small bruise on his right shin; that there was no particular tenderness on the stomach regions; and that the hernia could have been an old one.

The trial court concluded that the plaintiff had failed to discharge the burden of proving his case and that the defendant had clearly shown that he was not involved in any accident at all nor did he receive any disabling injury during the course of his employment.

While recognizing that the workmen’s compensation law, LSA-R.S. 23:1021 et ,seq., should be liberally construed, in favor of employees, it is true that in such cases, the plaintiff must bear the burden of proof and establish his case by a reasonable preponderance of the evidence, which we do not believe has been done in this case. See Williams v. Harris, La.App., 77 So.2d 744, 745; Johnson v. Southern Industries Co., La.App., 77 So.2d 750; Smith v. International Paper Co., La.App., 73 So.2d 652.

For the above and foregoing reasons the judgment of the District Court is affirmed.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Sidney AUCOIN, Plaintiff-Appellant, v. J. H. BAUMGARDNER, d/b/a Golden Bakery, Defendant-Appellee.
    No. 4149.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 3, 1956.

      Carmouche & Martin, Ernest G. LaFleur, Jr., Lake Charles, for appellant.
    Joe J. Tritico, Lake Charles, for appellee.
   TATE, Judge.

Plaintiff Aucoin appeals from judgment dismissing his workman’s compensations claim against his former employer, J. H. Baumgardner, d/b/a Golden Bakery.

The chief issue before us on appeal is whether plaintiff proved the alleged accident while working on January 3, 1955. The record preponderantly shows that Aucoin was disabled at date of trial on October 6, 1955, by reason of a muscle strain or a tissue injury in the lower back, which disability has persisted from at least January 3, 1955.

The District Court, who saw and heard the witnesses, held that plaintiff did not prove his case with reasonable certainty, apparently (oral reasons were assigned) because:

(1) Aucoin’s • two co-employees working with him on the date of the alleged accident, denied that any accident occurred and testified that earlier in the.morning before the alleged accident, Aucoin had told one of them he felt bad and would go to the doctor later, in the morning; one of these co-employees having been called as a witness by plaintiff;
(2) Dr. Harry Snatic, called by plaintiff, to whom plaintiff reported .at about 1:00 p. m. after an alleged accident of 11:00 a. m. on January 3, 1955, testified positively that Aucoin told him then that the accident had occurred while working on the previous day, January 2, 1955;
(3)Aucoin gave several slightly conflicting versions of the accident on various occasions — -for example, testifying the accident occurred (a) when picking up three or four trays or (b) fifteen trays or (c) a tray loaded with bread or (d) when stooping or bending to do so.

Plaintiff urges with considerable force that the negative testimony of the co-employees is due to the fact that as of the date of the trial they were still employed by defendant and were without protected tenure; that the conflicting versions of the accident are due to Aucoin’s inability to speak English well and the necessity of his testifying and having his history taken by physicians through interpreters; and that Aucoin’s version of the accident is strongly corroborated by his working through the morning until he reported to Dr. Snatic, following which date there is little question as to his consistent disability. (However the co-employees testified that on the morning of the accident Aucoin had no heavy work to do which might have indicated or caused disability.)

Plaintiff urges that defendant’s insinuations that plaintiff hurt himself while off work between January 2 and January 3, 1955, — a possibility because plaintiff’s congenital hunchback . deformity, easily predisposed him to injury (either at work or off), — are totally unsupported by any proof.

In' the last analysis, these strong and able arguments are directed at the District Court’s evaluation of the credibility of the witnesses as to whether an accident within the meaning of the Compensation Act, LSA-R.S. 23:1021 et seq., had occurred at work on the morning of January 3, 1955. We do not feel the District Court’s factual determination that such accident had not occurred, to be manifestly erroneous. The judgment of the District Court dismissing plaintiff’s.,suit will therefore be affirmed. This suit being in forma pauperis, plaintiff will not be taxed with costs.

Affirmed.


author: HARDY, Judge. AYRES, Judge.

text:
    Elzie H. WHITE, Plaintiff-Appellant, v. John D. THOMAS, et al., Defendants-Appellees.
    No. 8402.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 2, 1955.
    On Rehearing Feb. 2, 1956.
    Cook, Clark, Egan, Yancey & King, Shreveport, for appellant.
    Bullock & Bullock, Shreveport, for ap-pellees.
   HARDY, Judge.

This is a petitory action in which plaintiff prays to be recognized as the true and lawful owner and as such entitled to the full and undisturbed possession of certain property described by metes and bounds in his petition and containing some nine acres, more or less. After trial there was judgment in favor of defendants sustaining their plea of thirty years prescription and rej ect-ing plaintiff’s demands, from which plaintiff has brought this appeal.

Plaintiff is the record owner of Lot 4 of the Hubbard Lands located in Section 24, Township 22 North, Range 16 West, Caddo Parish, Louisiana, containing 37 acres, more or less, by deed of conveyance from the heirs of Phanor and D. W. Breazeale dated May 12, 1950, and is also the record owner 'of a six-acre tract of land lying in Lot 2 of the Hubbard Lands, by virtue of deed from Jean Kidd Brown, et ux., dated November 16, 1950.

The acreage involved in this litigation, the .ownership of which is in dispute, constitutes a small portion of both Lots 2 and 4 of the Hubbard Lands, and admittedly defendants have been in possession of the property in dispute for a period of more than thirty years. We quote below the stipulation dictated into the record by counsel for plaintiff which delineates the only question which is before us for resolution:

“If the Court please, I would be willing to stipulate that Thomas, or the Thomases, had had actual, physical possession of this property for a period of thirty years, in order to .get our thinking straight; we are assuming from the facts we have gathered that they have had possession for that length of time, and the whole point is not the physical possession of the defendant, hut that they engaged in a lease in 1936, as shown by deposition of Mrs. Breaz-zeale, which had the effect of interrupting any prescription by the defendants.
“I would be willing to stipulate further that the Thomases have had actual physical possession, however we do not admit, but expressly deny, that the actual physical possession did not constitute notorious, uninterrupted possession. This is our case. If possession is not interrupted, that is our case.”

Before this court counsel for plaintiff urges two propositions, first, that a lease transaction executed in -the year 1934 by the Breazeale heirs as lessors and defendant, J. D. Thomas, as lessee, 'effectively constituted an acknowledgment'by the said Thomas of the Breazeale’s ownership of the property in dispute and thereby interrupted the running of prescription under the provisions of Article 3520 of the LSA-Civil Code, which contention counsel supports by citation of Foscue v. Mitchell, 190 La. 758, 182 So. 740, and Blades v. Zinsel, 15 La.App. 104, 130 So. 139.

Secondly, counsel for plaintiff contends that the property located in Lot 2, which is here in dispute, was adjudicated to the State in 1913 for the nonpayment of taxes assessed in the name of G. I. Miller for the year Í912; that the property was not redeemed until 1936 and that, since defendant could not acquire title by prescription during the time title was vested in the State, such fact constituted an interruption of the continuity of defendant’s possession under the authority of Ward v. South Coast Corporation, 198 La. 433, 3 So.2d 689.

We think the law applicable to both of the above propositions is well established as contended by counsel for plaintiff and it follows, therefore, in the final analysis, that the determination of the proposition submitted must be controlled by the resolution of the factual issues in connection therewith, both of which appear to have been concluded by the trial judge adversely to plaintiff’s contentions.

The deed of conveyance from the heirs of Phanor and D. W. Breazeale to plaintiff was executed by Marie Breazeale, daughter and one of the heirs of Phanor Breazeale, deceased, acting under authority of a power of attorney. In March, 1953, prior to the institution of this suit, both plaintiff and his attorney addressed letters to Miss Marie Breazeale .at Natchitoches, Louisiana, inquiring about the execution of a lease from the Breazeales to J. D. Thomas. Miss Breazeale having removed her residence from Natchitoches to the City of New Orleans, the inquiries were forwarded to her there and under date of April 1, 1953, Miss Breazeale directed a letter to plaintiff’s attorney at Vivian, Louisiana, advising him that following her father’s death in April, 1934, she had a meeting with Mr. J. D. Thomas in Vivian, Louisiana, at which time she wrote up an agreement of lease covering the property. She further explained that she was unable to locate the written agreement among the papers she had brought to New Orleans. The above correspondence is incorporated in the record in connection with cross-interrogatories propounded to Miss Breazeale by counsel for defendant.

In her testimony, given by deposition in answer to interrogatories and cross-interrogatories, Miss Breazeale set forth an account of the lease transaction and specifically declared, in accordance with her recollection, that the lease embraced all of the property and was not restricted simply to a part thereof as contended by defendant. Miss Breazeale’s answers to the interrogatories are so convincing and her recollection of other circumstances so exactly accords with the facts otherwise established by the record that, in our opinion, her testimony is entitled to great weight. Particularly is this true by reason of the contrast with the uncertainty evidenced in the testimony of the defendant, J. D. Thomas, on trial of the case, who first declared that he had not entered into a written agreement, but who later admitted the execution of- a written lease.

The material conflict between the testimony of Miss Breazeale and Mr. Thomas is found in the fact that the latter claims that the lease into which he entered with the Breazeales was limited to land in Lot 4 east of a certain fence, whereas Miss Breazeale testified that the lease included all of Lot 4. Substantiation ,of the accuracy of Miss Breazeale’s testimony is found in the fact that she was able to recite a description of the property and otherwise to evidence her clear recollection of the incidents and circumstances surrounding her meeting with Mr. Thomas and the execution of the lease. Inasmuch as Miss Breazeale herself drew the agreement of lease it must be concluded that she was in a better position to recall its provisions. It is further to be noted that Miss Breazeale repeatedly denied her knowledge of the existence of any fence on the property involved, and the record is convincing on the point that she had never personally been on the property. It reasonably follows, under such a circumstance, that if the lease had been limited to a portion of the property on the east side of a fence which she did not know to exist, she would be able-to recall such a fact.

Careful study leads us to the conclusion that the testimony of Miss Breazeale in connection with the incident of the lease agreement is clearer, more convincing, and, consequently, more reliable than that of the defendant. In our opinion plaintiff has successfully established the fact of the execution of a lease to all of Lot 4, and defendant has failed to establish by a preponderance of the evidence that the lease was restricted to a portion of the said lot. It follows that the execution of the lease must be regarded as an interruption of the prescription asserted by defendant.

As to the disputed property lying in Lot 2, there is no question as to the fact that it was adjudicated to the State, in whose ownership the title resulting therefrom remained for many years until redeemed. Under the authority of Ward v. -South■ ■Coast Corporation, supra, this fact clearly constituted an interruption of the prescription claimed by defendant.

In view of these findings of fact it is obvious that defendant has failed to establish his continuous and uninterrupted possession of the property in dispute over a period of thirty years and as a consequence the plea of prescription was improperly sustained.

For the reasons assigned the judgment appealed from is reversed and set aside and there is now judgment in favor of plaintiff, Elzie H. White, decreeing him to be the true and lawful owner of -the following described property:

Begin at the Southwest corner of the Hubbard Lands, thence 43° 45' East 69S.8 feet, thence North 828.4 feet to point in North line of Lot 2, Hubbard Lands, said point being the Northeast corner of Lot 14, Pine Acres Subdivision, thence .North 89° 15' East 144.4 feet, thence South 0° 45' West to point in South line of Lot 4, thence South 89° 15' West along South line of Lot 4 to place of beginning, all in Caddo Parish, Louisiana, in Section 24, Township 22 North, Range 16 West.

There is further judgment ordering defendants, Henry L. Thomas, John D. Thomas and J. Owen Thomas, to deliver' possession of the property described to the plaintiff.

There is further judgment in favor of plaintiff and ■ against the defendants, in solido, for all costs of this suit.

On Rehearing

AYRES, Judge.

A rehearing was granted herein primarily for a reconsideration of defendants’ plea of 10 years’ acquisitive prescription and particularly as to that portion of the property in dispute lying in Lot Two of the Hubbard Lands. This lot was adjudicated to the State in 1913 for the unpaid taxes of 1912. Actual corporeal possession of this property has been exercised by the defendants as owners since 1914. The property was redeemed ■ from the State in 1936, and defendants’ possession continued over.said lands uninterrupted and undisturbed until this suit was filed May 15, 1954, or for approximately 18 years.

Defendants’ possession as owners was under and by virtue of a deed from Sarah E. Hubbard Brown dated March 16, 1914,. which was duly recorded in Conveyance' Book 92, Page 503, of the records of Caddo Parish, Louisiana. We stated in our original opinion that

“The acreage involved in this litigation, the ownership of which is in dispute, constitutes a small portion of both" Lots 2 and 4 of the "Hubbard Lands, and admittedly défendants have been in possession of the property in dispute for a period of more than thirty years.”

It was held, only because that portion of said property located in Lot Two had been adjudicated to the State and not redeemed until' 1936, as aforesaid, that defendants were deprived of the benefit of their plea of 30 years’ "prescription inasmuch as they could not acquire title by prescription during the time that title was vested in the State, which resulted in an interruption of the continuity of defendants’ possession. However, defendants’ possession, from and after said redemption, was continuous and uninterrupted to the date of the filing of this suit. That the nature and character of defendants’ title a-nd possession as to the lands lying in Lot Two of the aforesaid tract comply with the requirements of LSA-C.C. art. 3478, which provides that “He who acquires an immovable in good faith and by just title prescribes for it in ten years * * * ”, admits of no dispute. Therefore, defendants’ plea of 10 years’ prescription as to this portion of the property in dispute should have been sustained. ■ ■

For these reasons, we conclude that defendants should be decreed the owners of that portion of the property in dispute lying in Lot Two of the Hubbard Lands, and that for the reasons assigned in our original opinion plaintiff is entitled to the ownership of that portion of said lands lying in Lot Four. It is, therefore, necessary that oúr original decree be amended and recast.

■Accordingly, there is now judgment in favor of the plaintiff, Elzie H. White, recognizing and decreeing him to be the true and lawful owner and as such entitled to the possession of all that portion of the following described property lying in Lot, Four of the Hubbard Lands, towit:

Begin at the Southwest corner of the Hubbard Lands, thence 43° 45' East 695.8 feet, thence North 828.4 feet to point in North line of Lot 2, Hubbard Lands, said point being the northeast corner of Lot 14, Pine Acres Subdivision, thence North 89° 15' East 144.4 feet, thence South 0° 45' West to point in South line of Lot 4, thence South 89° 15' West along South line of Lot 4 to place of beginning, all in Caddo Parish, Louisiana, in Section 24, Township 22 North, Range 16 West,

and that as to the possession of said lands the defendants, Henry L. Thomas, John D. Thomas and J. Owen Thomas, are hereby ordered to deliver to plaintiff.

It is further ordered, adjudged and decreed there be judgment in favor of defendants, Henry L. Thomas, John D. Thomas and J. Owen Thomas, decreeing them to be the true and lawful owners of all that portion of the aforesaid described prop--erty lying and being situated in Lot Two of the aforesaid Hubbard Lands, and, as such owners, entitled to the possession thereof.

It is further ordered that one-half of all the court costs be paid by the plaintiff and the other half by the defendants, and they are hereby cast accordingly.

The right is hereby reserved to the appellant to apply for a rehearing.

Accordingly, our .original decree is thus amended and, as amended, is made the final judgment of this court.


author: AYRES, Judge. PER CURIAM.

text:
    John T. PHARIS, Plaintiff-Appellant, v. Claude P. JOWERS, Defendant-Appellee.
    No. 8467.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1956.
    Rehearing Denied March 2, 1956.
    George T. Anderson, Jr., Coushatta, for appellant.
    Bethard & Bethard, Coushatta; for ap-pellee.
   AYRES, Judge.

Appellant made no appearance either in person or through counsel when this case was called for argument. Inasmuch as he failed to appear or to file a brief in support of his case, it is presumed that the appeal has been abandoned and it will, accordingly, be dismissed. Falcon v. Falcon, 224 La. 938, 71 So.2d 334; Peace v. Love, 223 La. 772, 66 So.2d 803, and authorities therein cited; Normand v. Avoyelles Parish School Board, La.App., 11 So.2d 713; Johnson v. Montgomery, La.App., 84 So.2d 213.

Therefore, the appeal is dismissed at appellant’s costs.

Appeal dismissed.

On Motion for Rehearing.

PER CURIAM.

In a motion for a rehearing, plaintiff-appellant urges that we were in error in dismissing his appeal as having been abandoned for the reason that he made an appearance by filing a brief on January 26, 1956, before the rendition of the judgment of dismissal on February 2, 1956. In support of this contention counsel cites Rule 7 of the Rules of this Court, which, according to his interpretation, provides for the reception of briefs any time prior to the rendition of judgment.

This case was assigned and docketed for trial for January 9, 1956, at which time it was regularly called, without appellant making any appearance and without having filed any brief in support of his appeal. Several days prior to the receipt of appellant’s aforesaid brief, the opinion in this case had been determined and written. It is provided in the aforesaid rule, LSA-R.S. Vol. 8, page 670 that, not less than five days before the case is to be heard, counsel for both, appellant and appellee must file with the clerk three copies of their briefs and that counsel shall exchange briefs at least five days prior to the date the. case is fixed for trial in this court, which fact must be shown by a certificate attached to the briefs. The rule further provides that, on a proper showing, delay will be granted In exceptional cases for the filing of briefs, Out that the trial and determination of the case will not on that account be retarded. No request was made by counsel for additional time within which to file a brief and no reason or showing has been advanced for the delay in forwarding his brief to this court.

Non-compliance with the Rules of Court cannot be countenanced, in the absence of substantial reasons in justification therefor. The orderly and expeditious disposition of appeals necessitates strict conformity to the established rules, and exceptions can be made only in rare and convincingly meritorious cases. No such ground exists in this instance.

The motion for rehearing is, therefore, denied.


author: SIMON, Justice."

text:
    229 La. 229
    STATE of Louisiana v. Robert WALKER.
    No. 42592.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    "W. T. McCain, Colfax, C. D. Moss, Winnfield, for defendant-appellant
    .Fred S. LpBlanc, Atty. Gen.,.M. E. Cul-ligan, .Asst. Átty. Gen., Sam L, Wells, Dist, Atty., Colfax, ' Harry , Fuller, Associate Counsel, Winnfield, for appellee.
   SIMON, Justice."

The defendant, Robert Walker, was charged with the crime of attempt'to "commit aggravated Tape" and' was convicted of the lesser crime of attempt to commit simple' rape and. sentenced to 7 yeals’ confinement in the state penitentiary. During the course of the trial he reserved 10 Bills' of exception, relying thereon for reversal of his conviction and sentence.

In oral argument counsel for the defendant announced to th,e court that- he abandoned and waived all bills of ■ exception preyiausly reserved by hjm, save and except. Bill of- Exception No. 7, which was taken to the trial court’s ruling admitting in evidence the oral and written confessions of the defendant over the objection of defendant’s counsel contending that said confessions were not shown to have been freely and voluntarily made.

In his per curiam the trial judge states that “When the State began to lay the basis for the1 introduction of these' confessions, the jury was retired and the ■ Court heard the detailed testimony1 out of1 the presence of the jury. Sheriff, J. W. Smith and Deputy Sheriff Joe Morgan, of Grant Parish, Deputy- Sheriff C. W. O’Quinn of Rapides Parish, Lt. ,C. E. Wagoner of the Louisiana State Police and Mr. and Mrs. Wade, Ellis all testified- as to all, circumstances surrounding the giving of these confessions, both oral and written. The evidence established beyond any possible doubt that the confessions were free and voluntary and were not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. LSA-R.S. 15:451. At the conclusion of the foundation laid by the State, the defense was asked whether it wished to offer any testimony, which offer was declined. The defense did state that it reserved the right to offer testimony before the jury but declined to contradict or traverse the testimony of the officers and Mr. and Mrs. Ellis out of the presence of the jury and before the admissibility of the confession was passed upon by the trial Judge. The Court thereupon ruled that the admissibility of the confessions under LSA-R.S. ' 15:451 had been affirmatively proven.

“The Court feels that the admissibility of the confessions was proved beyond any question but especially so in the absence of any proof to the contrary by the defendant, at any time during the trial.”

The law governing the admissibility of confessions is well settled and has been emphatically expressed in the recent case of State v. Palmer, 227 La. 691, 80 So.2d 374, wherein we disposed of an-identical bill and stated the well settled law in this state that before a confession can be introduced in evidence it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. State v. Richard, 223 La. 674, 66 So.2d 589; LSA-R.S. 15:451, 15:452 and Art. 1, § 11 of the Louisiana' Constitution of 1921, LSA.

In the case of State v. Cook, 215 La. 163, 39 So.2d 898, 901, upon reviewing many authorities we said: ■

“ ‘The question of the admissibility of a confession is 'for the judge, its effect for the jury’, * * * and ‘whether a sufficient basis was laid for the admission of an alleged voluntary confession is a question of fact upon which the ruling of the trial judge will not be disturbed unless clearly against the preponderance of the evidence’, * *

In support of appellant’s Bill of Exception No. 7 it is contended that because the defendant is but 20 years of age, suffering some degree of mental deficiency, alleged repeated interrogation by investigating officers over alleged long periods of time was such as to provoke undue influence and emotional strain upon the defendant’s mind, thereby inducing his written and oral confessions. It is not contended that the defendant was subjected at any time to any duress, intimidation, menaces, threats, inducements or promises, force or violence, orally made or physically demonstrated.

Defendant cites the cases of State v. Robinson, 215 La. 974, 41 So.2d 848, and State v. Crittenden, 214 La. 81, 36 So.2d 645, as sustaining his contention.

Both cases cited are clearly inapposite. The rules announced therein are sound legal principles, affirming our long line of jurisprudence on the subject matter, but are applicable to factual situations altogether different from the one presented here.

In the Robinson case, defendant was but 16 years of age and mentally immature. Two officers visited him, and after lengthy questioning told defendant that he had better confess to them because they had him in the palm of their hands. The defendant remained silent. Upon departing, the officers menacingly threatened that they "would return shortly, telling the defendant to expect the worst. One hour later defendant confessed to the jailer, who was not present when the confession was first sought by the two officers. Though it is impossible to measure the effect of such a declaration upon one’s mind, we held that such declarations were veiled threats and a coercive, bidding, calculated, under such circumstances; to induce a confession as a result df the fear instilled in the mind of defendant, rendering it inadmissible.

In the Crittenden case the defendant was subjected to repeated cross-examinations accompanied by harsh treatment over a period of three days, with the additional inducement of a promise of a lighter penalty. We held his confession made under such circumstances to be inadmissible.

The factual situation here presented is entirely different from that' which appears in the Robinson and Crittenden cases., An analysis of the evidence presented out of the presence of the jury to determine the admissibility of the alleged confession, convinces us that the oral and written confessions of the defendant were freely and voluntarily made by him and, therefore, admissible. There is not a scintilla of evidence from which we can even infer any degree of influence or fear, duress, intimidation, menaces, threats, harsh treatment, inducements or promises, physical or moral, made by those who received these confessions, and who were examined exhaustively under direct and cross-examinations regarding the facts and circumstances surrounding the giving of these confessions by the defendant.

It appears that all persons who were present at the time these written and oral confessions were made by the' defendant were called by the state and testified as aforestated. We search in vain for any testimony offered by the defense to,contradict or impeach the truthfulness of the testimony so given as to the free and voluntary nature of the confession. It is apparent that the interrogation preceding the giving of these confessions was conducted in the manner of ordinary conversation, with courteous questions and answers and with full consideration given to' the defendant’s physical and mental comforts during the period of his interrogation, which was at no time excessive or hársh.

We find no evidence in the record which would arouse the slightest suspicion as to the alleged mental incapacity of this defendant. On the contrary, it appears that before trial, at the request of the district attorney, the trial court appointed two medical experts to inquire into the sanity of the defendant. The report of this commission shows that the defendant “is presently sane, is able to understand the proceedings against him arid to assist in his defense”. The record does not show any attack or complaint made by the defendant against the correctness of this report.

We conclude that the oral and written confessions made by the defendant and offered in evidence were freely and voluntarily made, and that Bill of Exception No. 7 is without merit.

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

FOURNET, C. J., absent.


author: SIMON, Justice.

text:
    229 La. 237
    Nellie Doyle Floyd THORNTON v. James Bura FLOYD.
    No. 42159.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Louis Lyons, Bossier City, for plaintiff-appellant. ■ • ■
    J. L. Thomas, Jr., Bossier City, for defendant-appellee.’' '
   SIMON, Justice.

On November. 12, 1948, a judgment was rendered in favor of plaintiff, Nellie Doyle Floyd, and against her husband, James Bura Floyd, granting a separation fro’m bed and board, awarding to her the care, custody and control of their two minor children^ Eugene Lynn Floyd and Jámes Douglas Floyd. The defendant therein”was ordered to'pay alimtíny'at the rate of $18' per week' for the maintenance and support of the said minor children’.

In the samé styled and numbered suit, the defendant on Match 18, 1950, petitioned the' district court for a final decree of divorce,1 alleging thafmore than one year and sixty days had elapsed from the 'date' of "the judgment of separation'without any reconciliation' between the parties. '"Though the wife filed an answer to her husbáhd’s divorce suit, she made no defense thereto, riofi 'did she' assert ’her right' to custody of their minor children nor the right to receive alimony for.their maintenance and support.. The "issue vel non was the husband’s right to a divorce. On March 28, 1950, a final judgment of .divorce was rendered without any provision .therein made for custody of or alimony for said children, neither' having been sought.

On April 14j Í954, the plaintiff wife caused a rule nisi to issue ordering the defendant husband to show cause, why a judg-' ment in_ the sum of $2,376, .allegedly' representing accrued alimony due and exigible in favor of the minor children,’, should not be rendered. In response to said rule the defendant filed an exception, of no right-or cause of action, contending ;that the judgment of divorce rendered in his favor on March 28;' -1950, ’was' a' final - judgment, thereby nullifying and rendering of no force and effect-the judgment- of -separation-granted in favor of the wife on November 12, 1948.

The trial court sustained the exception and rejected plaintiff’s deniánd at her cost, from which judgment plaintiff prosecutes', this appeal.

In her rule to show cause, plaintiff alleges' that under the- judgment rendered granting ‘alimony for the support of her two minor children .there is unpaid alimony due and owing in the'sum of'$2,376. She prays that said amount be reduced to a money judgment and-thus operate as -a-judicial mortgage exigible and enforcible under. our law.

In her suit for'a separation, plaintiff did not seek alimony pendente lite for her own maintenance and support,'but only for that, -of the children. Accordingly, the alimony awarded was -an incident incorporated into and made part of the judgment of separation. Therefore, in the present rule she is not seeking to collect delinquent and unpaid alimony pendente lite but purely the .accrued amount representing installments ■of the award made in said judgment.

The singular issue before us is whether plaintiff can invoke this procedure by way of a rule nisi, to enforce a right incidental to the judgment of separation of bed and-' board after a subsequent decree of divorce was rendered; or, correspondingly, whether the final decree of divorce abates and renders ineffective all decrees contained 'in the' judgment of separation from bed and .board.

Under pur laws a judgment of separation from bed and board is not a disso-' lution of the marriage, and, in fact, may' never result in a final decree of divorce which would forever dissolve thé bonds of matrimony and place the parties in their re-' •lation to each other as if no marriage had -ever been contracted between them. During the effective life of a judgment of separation from bed and board, the husband and wife may reestablish their marriage by .a mere reconciliation. A judgment of separation may judicially fix and determine the status of property and other incidents 'flowing from siich a proceeding, such as the custody of the children and the right of alimony. Incidéntal matters such as custody of children and alimony, however, are not of a fixed' ánd 'pehnanént 'status ánd are subject'' to enforcement and to change or modifica-' tioñ dúring its legal existence.

It nécessarily follows that a judgment ' decreeing a divorce between' the spouses, with its attending finality and conclusiveness, generally abates all judgments of separation from bed and board, including all incidents flowing therefrom. A judgment of divorce becomes determinative of the rights of all parties. When such a decree incorporates matters ■ dealing with the custody- of children and rights to alimony for maintenance and support, those provisions are deeméd not permanent but matters subject to judicial change or modi-, fication. However, where a definitive decree-of divorce is silent as to the custody .of children and of an award of alimony necessary for their maintenance andssupport, we are convinced that such a judgment, being final and conclusive,- abates;and.-renders ineffective a judgment of separation with.all. of its incidents and cannot be - altered or modified'by a summary-proceeding seeking thereby to revive the incidents of the separation suit which have not been presented for adjudication in the divorce suit.

In the case of Bienvenue v. Bienvenue, 186 La. 429, 172 So. 516, the defendant-wife, against whom a decree of divorce had been granted on.the statutory ground of four-year separation, instituted summary proceedings by rule to have her husband condemned to pay alimony for her maintenance. The- judgment of divprce did not provide for the payment of alimony, and the respondent husband, contended that unless a rule for alimony is incidental to the main demand, no summary proceeding is authorized by law.- We upheld his contention, and in reviewing the codal articles dealing with the rights of a wife -to alimony, we held that where there has been a judgment granting to the wife alimony pendente lite, followéd by a judgment of divorce, that such a judgment of alimony ceases to have arty legal effect, citing Bowsky v. Silverman, 184 La. 977, 168 So. 121. We cited'the case of Player v. Player, 162 La. 229, 110 So. 332, wherein we recognized the right of the wife to claim alimony after a divorce decree has been rendered, and held that such a right could not be pleaded as an incidental demand but required a separate suit. - Accordingly, in the Bienvenue case, we concluded that a summary proceeding was not authorized by law and, therefore, subject to an exception of no cause or right of action.

In the case of Cotton v. Wright, 193 La. 520, 190 So. 665, while- the plaintiff’s suit for separation was pending, with an award of alimony pendente lite in her favor, her husband filed a separate suit for divorce on the ground of two years’ separation. After the institution of the divorce suit, the wife proceeded in her suit for separation by rule nisi, ordering the husband to show cause why delinquent and accrued alimony should not be fixed and rendered exjgible. When the rule nisi was called for hearing, the husband, having obtained a final decree of divorce, excepted thereto on the ground that all proceedings in this cause-, were ipso facto merged into the said final judgment of divorce and that summary process was, therefore, not permissible, or, in effect, a plea in abatement. We recognized as sound the contention that, when the husband had been granted an absolute divorce on statutory grounds, his wife’s suit against him for separation from bed and board went out of legal existence, the bonds of matrimony having been completely severed by the divorce. However, we further held that, the wife having sought by rule nisi an executory judgment for unpaid installments of alimony which accumulated during the interim of her suit for separation and the date of the judgment of divorce, such summary proceeding was permissible to enforce a final judgment for installments of alimony which accrued while defendant was her husband or, in other words, until the judgment of final divorce.

While the cases above cited involve questions of alimony for the wife, the findings and reasonings therein apply as strongly to the case at bar involving alimony in favor of the children.

In the case at bar plaintiff is seeking to have declared due and exigible unpaid and accrued alimony installments from February 22, 1949 to April 14, 1954, the date the rule nisi was issued. As previously stated, a final decree of divorce was obtained by the husband on March 28, 1950, and no appeal was'taken therefrom. The rights granted.by said judgment are con-' elusive. However, alimony rights acquired by virtue óf the judgment of separation prior to the rendition of the final decree of divorce are enforcible.

Accordingly, we conclude that the judgment of divorce, though final and conclusive, does not prevent the wife from seeking on behalf of the children to make ex-ecutory the unpaid alimony installments which accumulated between the dates of the judgment awarding said alimony and the final decree of divorce; and, in that limited respect, she has stated a cause and right of action.

Insofar as her demand by way of rule nisi seeking to make enforcible alimony allegedly accrued subsequent to the date of the judgment granting the husband a divorce, such rule being predicated upon the judgment of separation which we hold became abated by the judgment of divorce, she fails to state a cause or right of action.

We are fully cognizant of the parental obligations of mothers and fathers to support and maintain their children as prescribed by LSA-Civil Code Article 227. Concededly, that obligation is a continuing legal duty on the part of the father, not as a result of marriage but from the fact of paternity; and a dissolution of the marriage does not dissolve the parental obligation of maintenance and support so prescribed. State v. Seghers, 124 La. 115, 49 So. 998; Hardy v. Collins, 136 La. 467, 67 So. 333; Wilson v. Wilson, 205 La. 196, 17 So.2d 249.

In the enforcement of this parental obligation, we have consistently adhered to-the principle that after a judgment of final divorce between the parties, resort must be had to a direct and separate action, the-. enforcement of such a right not being an incident to or growing out of’a final judgment of divorce. Hanagriffe v. Hanagriffe, 122 La. 1012, 48 So. 438; Hardy v. Collins, supra.

Accordingly, for these reasons the judgment of the district court is reversed and the exception of no cause or right of action is overruled. This cause is remanded to the lower- court for further proceedings not inconsistent with the views herein expressed and as directed by law. .

      . LSA-R.S. 9:302.


author: SIMON; Justice. McCALEB, Justice .HAWTHORNE, Justice PONDER, Justice. McCALEB, Justice PIAMITER, Justice

text:
    229 La. 246
    CITY OF NEW ORLEANS v. LOUISIANA SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS.
    No. 42332.
    Supreme Court of Louisiana.
    June 30, 1955.
    On Rehearing Jan. 16, 1956.

      William J. Guste, John Pat. Little, Roland J. St. Martin, New'Orleans, for defendant-appellant.
    ■Albert J; Flettrich, New Orleans,' counsel and member, Title Examination Committee of New Orleans Bar Ass’n.
    Frank H. Peterman,- Alexandria, R. Gordon Kean, Jr., Baton Rouge, Wood H. Thompson, City Attys., Monroe, amicus curiae in support of plaintiff’s* application for rehearing.
    Henry B.- Curtis, City Atty., Charles E. Cabibi, Luther E. Hall, Jr., and IT. L. Dufour Woolfley, Asst. City Attys., New Orleans,. for plaintiff and appellee.
   SIMON; Justice.

This is an action for specific performance instituted by the City of New Orleans, seeking to compel the. defendant, Louisiana .Society for-the Prevention of Cruelty to Animals, to comply .with its agreement to purchase and take title to a certain area of the property generally known and styled as “Commerce Place”, located within its corporate limits and allegedly owned by it since March 7, 1836.

The record reveals-, that -.by Ordinance No. 18,645, adopted on December 1, 1953, the Commission Council of the City of New Orleans authorized the Commissioner of Public Buildings and Parks to advertise for sale and to sell that portion of “Commerce Place” adjacent to Square 1589 and ■“forming the corner of Elysian Fields Avenue and Florida Avenue, as well as the corner of Marigny Street and Florida Avenue, in the Third Municipal District ■of the City of New Orleans, as shown on plat or survey of city-owned property, made by G. S. Bisso, dated April 12, 1946, and approved by N. L. Marks, Jr.,' City Engineer.”

On January 6, 1954, the Commissioner of Public Buildings and Parks, upon compliance with the abové ordinance, offered to sell the said property at public auction, and the defendant having tendered the highest bid was declared the successful purchaser thereof for the price of $43,415 plus costs of advertising and notarial fees. In compliance with its bid, defendant deposited with the City of New Orleans the required’ 10% deposit, the sum of ’$4,341.50.

Upon title to said property being tendered, the defendant refused acceptance thereof, predicating its refusal on the ground that the City did not have nor could it transfer a' merchantable title. Hence this suit.

In opposition to plaintiff’s demand, the defendant avers that the City of New Orleans has no recorded deed translative' of title, and that its only record of acquisition is its delineation as a public. square, namely “Commerce .Place”, on a plat or map made in 1833, said plat having’ been attached to an act of sale dated March 7, 1836, wherein the owner of the property of that .particular area sold certain lots. and therein recognized the area in question- as ■“Commerce Place.”

Defendant further urges that if there was .a legal acquisition of said property by the City, which it denies, it was an acquisition to be owned and held by the City-for public -use and to be exclusively devoted 'for the benefit of its inhabitants; and therefore said public park cannot be sold’or disposed ■of for private use without-an ‘express grant of legislative authority. ■ ■

The’plaintiff City maintains that, though it has no' recorded deed translative of title to the property nor a formal dedication thereof to public tise, the public square in question, because of its -above-stated designation by the owner and thereafter its acceptance and continued use and maintenance by’the City-as'a public square for the use and benefit of the public, became and is still public property subject to its administration and control. Plaintiff further contends that it enjoys the right of alienating this public property under authority granted by Section 8(1) of the Old City.Charter, as amended by Act 378 of 1948, the provisions of which were in effect at the time title thereto was tendered.

In the trial court the matter was submitted on a stipulation of fact, as above analyzed by us; and the trial judge rendered judgment recognizing the City as the owner of said public square with the corresponding right of alienating it for private use, and thereupon ordered the defendant to specifically perform its agreement to purchase. From this judgment defendant has appealed.

We thus have presented to us two legal problems, namely: (1) Whether title to Commerce Place is vested in the City of New Orleans, and (2) whether the City enjoys the power and .right to alienate this particular public park for private .use’.

’ Although there is no record’acquisition of this public square by the City of New Orleans, we are firmly convinced and necessarily’conclude, that the title to "said public square became vested in the City of New Orleans as public property by dedication in 1836. It manifested its acceptance of .the dedication by virtue of its recognition, use.and maintenance.,of the-property as a public park for a period of over 100 years until the present'.

In the early case of President, Recorder and-Trustees of City of Cincinnati v. Lessee of White, 1832, 6 Pet. 431, 8 L.Ed. 452, the Supreme Court of- the United States announced the principle that, dedications of use were valid, without the- necessity of a land for charitable, religious and public grantee to whom a fee could be conveyed, recognizing that such dedications constitute the “leaving open” of property for common and public use and for the convenience and accommodation of the inhabitants of a municipality. The court therein also pronounced the doctrine that there is no particular form necessary to a dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the purposes intended.

In the case of Pickett v. Brown, 18 La.Ann. 560, we held:

“ * * * the dedication of property for public uses may be inferred from facts and circumstances, which leave no reasonable doubt upon the mind of the intention of the owner to' make such a disposition, * *

See also New Orleans & C. R. Co. v. Town of Carrollton, 3 La.Ann. 282; Town of Carrollton v. Jones, 7 La.Ann. 233; and Municipality No. 2 v. Palfrey, 7 La.Ann. 497.

In Saulet v. City of New Orleans, 1855, 10 La.Ann. 81, we said:

“According to the principles * * *, on which dedications to the public use. have been supported, without any grant ' or deed, it must either appear that the ground has been used with the assent of the owner for public purposes which, in their nature, exclude the idea of private ownership, and for such a length of time, that the public accommodation and private rights would be seriously affected by the interruption of that use, * *

Likewise, in City of Shreveport v. Walpole, 22 La.Ann. 526, we said (Syllabus):

“No deed or act of conveyance is necessary to dedicate land or rights in immovable property to the public. Nor is any particular form necessary to the. dedication of land to the public use. All that is required is the assent of the owner of the land, and the fact that it is being used for the purposes intended. * *

We also observe that- in the recent case of Richard v. City of New Orleans, 195 La. 898, 197 So. 594, 598, in determining the title of the therein disputed property and its location as shown on a plan of survey, we said:

“ * * * A reference to the' map will show also the existence of ‘Commerce Place’ which, today, is treated as a locus publicus. * * * ”

We are next to-, consider whether the property herein was susceptible of a valid alienation by the City of New Orleans for private use.

Plaintiff readily concedes that, ordinarily in the absence of statutory authority, property forming part of the public domain is inalienable. However, it contends that the required statutory authority necessary to support its right- to sell this public square is granted by Section 8(1) as amended by Act 378 of 1948 of the Old City Charter in effect at the time of this transaction, which provides as follows:

“Section 8. The Commission Coua-cil shall also have power:
'“Public Streets
“(1) To order the ditching) filling, opening, widening, and paving of the public streets, and to regulate the grade thereof, and, by a two-thirds vote to sell or change the destination of any. street, side-walk or other property which is no .longer necessary for the public use to which it was originally destined, * *

Under the general principles treating with the Division of Things, LSA-Civil Code, Articles 453, 454 and 458 distinguish the various types of public things as follows :

“Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation: of this kind are navigable rivers, seaports, roadsteads and harbors, highways and the beds of rivers, as long as the same are covered with water.
' “Hence it follows that every man has a right freely to fish in the rivers, ports, roadsteads, and harbors.” LSA-Civil Code, Article 453.
“Things which are for the common -, use of a city or other place, as streets, and public squares, are likewise public things.” LSA-Civil Code, Article 454. ■
“Things which belong in common to the inhabitants of cities and other places, are of two kinds:
“Common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common; such as the streets, the public walks, and quays.
“And common .property which, though it belongs to the corporation, .is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.”- LSA-Civil Code, Article 458.

In the case of City of Shreveport v. Walpole, supra, in dealing with dedicated property for public use, we said:

“The dedicated property, being held as a public trust, and for public uses, is inalienable by the corporation. It is of that class of property defined in the first clause of article 449 of the Civil Code as ‘common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common, such as the streets, the public walks, the quays.’ ”

See City of New Orleans v. Carrollton Land Co., 131 La. 1092, 60 So. 695.

In the case of McNeil v. Hicks & Howell, 34 La.Ann. 1090, we said :

“The doctrine was early declared by this Court, that a, municipal corporation may alienate, or change the use and destination of public places with the consent and by the authorisation of the sovereign power ' first obtained’, 'whenever'the public interest may-’re- ' quire it. De Armas v. Mayor [etc., of New Orleans], 5 La. 132; Mayor v. Hopkins, 13 La. 326; Mayor v. Leverich, 13 La. 332.” (Italics Purs.)

.In the case of Parish of West Carroll v. Gaddis, 34 La.Ann. 928, we expounded our views regarding the rights and powers of parishes and municipal corporations to alienate property acquired by them, respectively, and devoted to public service. In recognizing their incidental and implied. rights to alienate or dispose of property held by them, and in distinguishing rights as to public property and.property of a private nature, we said:

“ * * * Whatever may be the right of those corporations, in' such cases [property real or personal of a private nature] the power could not be extended to instances of property acquired by dedication to public use generally, and devoted to some special purpose, for then the property becomes public property, and cannot be alienated without legislative authority. Dillon, 3d Ed., §§ 574, 575 et seq., and notes.”

In Henderson v. City of Shreveport, 160 La. 360, 107 So. 139, it was held that the police jury could not sell or otherwise dispose of a courthouse site, without express and special authority from the Legislature, because the property having been expressly bought for the purpose of erecting thereon the court building became a public thing, or hors de commerce.

The prohibition against power of a municipality to sell, without express legislative authority, property devoted to public use is based on the theory that such property by its very nature and destination is owned and held by the municipality as a trustee in trust for the use and benefit of the citizens of the municipality; and our law will not permit the municipal corporation to divest itself of the trust, nor to deprive the citizens of their, rights as beneficiaries in the common .use of the property,, unless such action be.made by and through express legislative sanction-or authority. This theory is further founded on the principle that a municipal corporation is not a legal entity or person whose interest - can be considered separate and apart from its people. It can only act as an instrument created and perpetuated for the common welfare of the people. Its officers, as such, are' nothing more' than agents of the public.' -In that capacity the scope' of their authority can not exceed that which is defined through its creation. It follows' that the usual authority and control exercised by a municipality' over property used-by its inhabitants as public property does not grant to its .'corporate officers the right to transfer said property to and for private purposes, thereby depriving the public Of its use, without express legislative authority.

In line with the above cited authorities and expressions quoted therefrom, we conclude that the general authority “to sell or change the destination of any street, side-walk or other property which is no longer necessary for the public use to which it -vyas originally destined,” embodied in section 8 of the City Charter, supra, and. relied upon by the City in its effort to effect a valid alienation, is not such an express and specific authorization as required-by our codal articles and jurisprudence to alienate property designated and treated as-locus publicus, the chara,cter of “Commerce Place”.

We approve of the following principle:

“ * * * There is authority which seems to support such a broad construction of similar general statutory grants of authority in other . states, but we think the sounder-view is that enunciated in State ex rel. Northern Pacific Ry. Co. v. Superior Court, 136 Wash. 87, 238 P. 985, wherein the court said it was; the consensus of authority that the legislature could authorize a municipality to convey property held in its trust capacity for a particular use, but that it was equally the consensus of opinion'that-it must-be'done specially and could not' be implied from a' general grant of 'power to -acquire, alien arid convey. See People ex rel. Lehigh Valley R. Co. v. State Tax Comm., supra [206 App.Div. 549, 202 N.Y.S. 310], and Brooklyn Park Commissioners v. Armstrong, supra [45 N.Y. 234], and also Lewis v.[City of] Providence, 10 R.I. 97.” Buckhout v. City of Newport, 68 R.I. 280, 27 A.2d 317, 322, 141 A.L.R. 1446.

The fact that the City declares this property' no longer 'necessary to the public use as originally destined does not in any manner alter, change or" affect the requirements which must be observed and complied with, as above' stated, when and if it seeks to alienate public' property to private ownership.

For the reasons assigned, the judgment of the lower court is annulled, reversed and set aside, and plaintiff’s suit is hereby'dismissed. All costs to be paid by the plaintiff.

HAMITER, J., concurs in the decree.

McCALEB, Justice

(dissenting).

I, of course, agree with the fundamental principle stated in the majority opinion that a municipality has only such powers as delegated to it by the Legislature; that, it has no right to alienate its property destined to public use, such as streets, sidewalks and the like, in ’theiabsence of special authority conferred upon it by .the law and that a grant of general corporate power to, purchase, hold, lease, transfer and convey real and personal’ property will not suffice. See annotation 141 A.L.R. 1447-1462. '

However, it is my opinion that the provisions 'of Section -8(1)- of the -old City Charter of New Orleans, Act T59 of 1912, as amended by Act 338 of 1936, as finally amended by Act' 378 of 1948,- confers upon the City express and specific -authority to sell or otherwise dispose of the property involved in this case. ■' ■ • ■ ■ ■ ■

Section 8 of the City Charter deals with “Discretionary Powers of Council”' and paragraph 1 thereof, which-has been part o'f the Charter since the enactment'of Act 159 of 1912, has, but for slight changes unimportant to this-case, been-couched in the same verbiage as , the original enactment. As amended by Act 378-of 1948, paragraph-1 of Section 8: confers upon the Commission Council the power “To order the ditch-, ing, ’filling, opening,: widening, and paving of the public' streets', and to regulate-the, grade thereof, and, by--a two-thirds vote-to sell or .change the destination of ány .street, side-walk or.- other property■ which is no-longer necessary for the public use to which, it was originally destined * , * (Emphasis mine.)

Why the quoted provisions are not of a specific nature,' the majority opinion does not disclose. Our predecessors did not entertain such a view for, in discussing this very Section of the Charter in the three cases • heretofore reaching ' this tribunal, which involved'the sale of exchange ■ of public streets, the court had no- difficulty in recognizing this provision to be an express grant of power by the Legislature. See State ex rel. Ruddock Orleans Cypress Co. v. Knop, 147 La. 1057, 86 So. 493, Schernbeck v. City of New Orleans, 154 La. 676, 98 So. 84 and State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725, 733. In-the last. cited .case-it was, said:, . ;. . ...

“ * *' * The rigid of the City Council of New Orleans to sell street’s' which a'rq.np longer' necessary for thé public use. to which?' they "were orig- . inally destined has béen recognized by this, court. * * * The closing or selling of such streets rests within the sound discretion of the Commission Council.”

Hence, it appears that the majority view herein is iri direct discord with the' prior jurisprudence.

Nor does the fact that this case does not involve the sale of a public street'or sidewalk detract from the Council’s authority t.o dispose of the real estate for (die aboye-quoted provisions, in addition tó ‘empowering the Council to sell its streets arid sidewalks, broadly includes all other property when, by a two-thirds vote, it concludes that the property '' is no longer necessary for the public use to which it was originally destined. There is no room for the application of the. doctrine of. ejusdem generis in construing such a statutory provision .because .the words “or other property” following the authority given to ’sell any street or sidewalk necessarily ■ embraces all other property formerly in public use save public parks,.and public squares, which are particularly covered by other, .provisions....The only characteristic by ,w;hich “other property” may be likened to a street or a sidewalk is its identity of use, i. e., dedication as the common property of the inhabitants.

I' apprehend that the ruling- herein has placed in jeopardy the validity of any title which has been derived from- the City of New Orleans under sales or exchanges founded.on the authority of Section 8(1) of the old City Charter, Act 159 of 1912, as amended. Indeed, it may even affect titles to property sold by other municipalities under similar grants of power by the Legislature.

I respectfully dissent

.HAWTHORNE, Justice

.(concurring in the decree).

As stated in the majority opinion, we are presented.in this case with two legal problems: “(1) Whether title to Commerce Place is vested in the City of New Orleans, and (2) whether the City enjoys the power and right to alienate this particular public park for private use.”

The majority concludes that the title to Commerce Place is vested in the City of New Orleans,, and I fully agree with this conclusion.

■ With reference to the second question, it is stated in the majority opinion that Commerce Place is a public park and has been used and maintained as such for a period of over 100 years. Commerce Place having been found to be a public park, let us now consider the provisions of Section 8(1) of Act' 159 of 1912 as amended by Act 378 of 1948. This act provides:

“Section 8. The Commission Council shall also have power:
“Public Streets
“(1) To order the ditching, filling, opening, widening, and paving of the public streets, and to regulate the grade thereof, and, by a two-thirds vote to sell or change the destination of any street, side-walk or other property which is no longer necessary for the public use to which it was originally destined * * *; provided that no designations of any property as a public park or public square, and no designation of any sidewalk or street adjacent to such public park or public square shall be changed without the approval in writing of .seventy per cent (70%) of the property owners within a radius of three hundred (300) feet of such property * * (Italics mine.)

It is my view that Section 8(1) of Act 159 of 1912 as amended by Act 378 of 1948 confers upon the City express legislative authority to sell, by a two-thirds vote of the Commission Council, any property to which it has title and which is no longer necessary for the public use- to which it was originally destined except “a public park or public square”, and even this kind of public - property may be sold by the City pursuant to the provisions of the statute provided its designation as a public park or public square is changed with the approval of 70 per cent of the property owners within a radius of 300 feet of the property.

The property involved in this suit was found by the majority of this court to be a public park, and there has been no showing that 70 per cent of the property owners within 300 feet of this park have agreed in writing to a change in its designation as a public park. In the absence of a showing that this requirement of the statute has been complied with, I concur in the decree.

On Rehearing

PONDER, Justice.

We. granted a rehearing in this case to reconsider our holding that the plaintiff could not compel the defendant to accept ■title to a piece of real estate designated as Commerce Place.

There were two questions presented in this case .which were- discussed at length in our original opinion, viz.: (1) Whether title to Commerce Place is vested in the City of New Orleans and (2) Whether the City enjoys the power and right to alienate this particular public property for private .use.

Briefs have been filed ¿s amicus curiae by the Committee on Title Examination of the New Orleans Bar Association wherein we are asked to clarify our interpretation of Section 8(1) of the Charter of the City of New Orleans as amended by Act 378 of 1948. Amicus curiae briefs have also been filed by the Cities of Alexandria,' Baton Rouge, and Monroe, wherein it is stated that many transfers of property have taken place, under the authority of Act 314 of 1946, as incorporated in the LSA-Revised Statutes of 1950 as Title 33, Section 4712, whereby public property has been converted to private ownership, and that the import of our decision on original hearing leaves the validity of these titles in doubt.

We are still of the opinion that title to Commerce Place is vested in the City of New Orleans. Dedication of property is frequently connected with the sale of lots where the owner sells the lots under a plat wherein he designates certain portions thereof for public use. Sarpy v. Municipality No. 2., 9 La.Ann. 597, 61 Am.Dec. 221. As pointed out in .our original opinion, the owner of the property sold lots with a plat attached to the various acts of sale wherein the property' in dispute was designated as “Place du Commerce”. This clearly established a dedication of the property for public use. Woodcock v. City of New Orleans, 5 Cir., 222 F. 260, 138 C.C.A. 50; Town of Vinton v. Lyons, 131 La. 673, 60 So. 54. And this court in Heirs of David v. City of New Orleans, 16 La.Ann. 404, recognized the testimony of expert witnesses to the effect that the designation “Place” before a name denoted a public square.

The question that has given us most concern is whether or not the City has been granted express authority to sell property of this nature. The pertinent provision oí the city charter reads as follows:

“To order the ditching, filling, opening, widening, and paving of the public streets, and to regulate the grade thereof, and, by a two-thirds vote to sell or change the destination of any street, side-walk or other property which is no longer necessary for the public use to which it was originally destined, or which is needed for public buildings or public utilities owned by the United. States, the State of Louisiana or the City of New Orleans, or for the establishment of a railway union depot, or for the enlargement or extension of any hospital which the City of New Orleans utilizes in whole or in part for the care and treatment of destitute persons; provided that no designations of any property as a public park or public square, and no designation of any sidewalk or street adjacent to such public park or public square shall be changed without the approval in writing of seventy per cent (70%) of the property owners within a radius of three hundred (300) feet of such property, and provided further, however, that the Commission Council may by majority vote rededicate to street purposes any formerly dedicated street which now forms part of any public square, place or park.” Act 378 of 1948, Section 8(1).

It would appear that under the above quoted section of the city charter as amended, if Commerce Place is a public square or park, that its designation could not be changed without the approval of 70% of the adjoining property owners. No such written approval of the adjoining property owners was secured in. this case and the city ordinance under which this sale was made is not based on the written approval of such adjoining property' owners.

Section 8(1) of the city charter is express authority granted the city by the Legislature to change the designation of the property. Schernbeck v. City of New Orleans, 154 La. 676, 98 So. 84; State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725. We agree with the statement that public property cannot be alienated without legislative authority, and we are in accord with the authorities cited on original hearing in support of this pronouncement of law but we think that Section 8(1) of the. city charter, as amended by Act 378 of 1948, is an express and specific authorization to change the character df public squares, no longer needed for public use, to that of private ownership. But this express authority is conditioned upon the city securing the written approval oí the adjoining property owners for the reason'that'the property involved in this case (Commerce Place) was dedicated as a public square.

A “square” has been defined as an open area in a city or village left between streets at the'intersection or formed by expansion, or treated as a park; in fact there is little distinction between a public square and a public park. 81 C.J.S., Square, page 841. “The word ‘square’ indicates a public use, either for purposes of a free passage, • or to be ornamented and improved for grounds of pleasure, amusement, recreation, or health.” 39 Am.Jur., Verbo, Parks, Squares and Playgrounds, Section 2, page 804. In other words, a public square is a space of ground set apart for the use of the public.

It was argued that the issue in this case is whether oi; not the City has authority to sell Commerce Place under the provision of Section 8(1) of the city charter, as amended, authorizing the sale or change of the destination of any street or sidewalk or “other property” by a % vote of the city council. In deciding whether there was a dedication of Commerce Place it was necessary to determine its character and its specific designation. It being a public square, it could not be disposed of as'“other property” because the charter requires the written approval of 70% of the property-owners within a.radius of 30Q feet of such property in order to change -its -designation. as a public square. Moreover, this court cannot ignore the designation of the property when it is apparent on the face of the- record. . . , ■

For the reasons assigned, our original decree dismissing' the- plaintiff’s suit is reinstated and hence plaintiff’s; suit is dismissed.

McCALEB, Justice

(dissenting, in part).

In line with the dissenting opinion heretofore filed by me in this'case, I subscribe to the view of the’ majority on rehearing that the City of New Orleans is given express authority by Section 8(1) of the Old-City Charter, Act 378 of 1948, to change the destination of public property- when authorized to do so by a two-thirds vote of the Commission Council, save in certain cases. By this ruling, the Court has effectively corrected the principal error of the original opinion.

On the. other hand, I see no valid reason for the conclusion reached by the Court denying the City the relief prayed for, which was granted by the District Court, on the theory that Commerce Place is a “public square” and, therefore, comes within the proviso contained in Section 8(1) of the Charter “that no designations of any property as a public park or public square, * * * shall be changed without the approval in writing of seventy per cent (70%) of the property owners within a radius of-three hundred (300) feet of such property, * * * ”, (Italics mine.)'

In the first place, as stated in my previous dissent, there is nothing in the pleadings, stipulation of facts or exhibits which defines or describes Commerce Place as a public square and it is not contended b'y either litigant that the property was ‘designated as such or has been used for such k purpose. Indeed, when' the case was orally árgued on rehearing, counsel for defendant stated, in response to a question from the Bench, that he.was not contending that it was a public square or park.

In these circumstances, it appears- to me that the present decision deprives the City of its day in Cotirt, giving it no chance whatever to ré'fút'é' the correctness of the ruling which, as I view it, 'is grounded: on the" assumption thát all public places'are necessarily public squares, or even to'ássáil the validity of the; proviso which delegates to a few property owners the right to veto the action of the-'duly constituted authorities representing the people of the City. - A more equitable procedure .would seem to dictate a remand of the case for the amendment of pleadings and admission of evidence.

In addition, to characterize Commerce Place as a public square because Corpus Juris broadly defines a square to be an open area in a City, or because some experts testified in another case decided by this Court that the designation “Place” before a name denoted a public square, is clearly erroneous in my opinion and has the effect of making the proviso apply in all cases, even for streets and sidewalks bordering on public places, thus substituting the proviso in place of the permissive grant.

The only evidence in the case touching upon the use of Commerce Place is found in a letter from the Secretary of the Board of Assessors to the Assistant City Attorney, which was admitted without objection, showing that it has been considered as a neutral ground adjoining the abutting streets. The dedicatory plat would, in itself, repel the idea that the property was at any time designated as a public square. It shows that it was designated as “Place du Commerce” which, translated from the French, is a place where persons, gather for the transaction of business, trade and commerce. See Spiers & Surenne’s French and English Pronouncing Dictionary. A public square connotes the idea of a place for recreation and play and, as applied to a municipality, a recreational place bounded by city streets.

For these reasons, I respectfully dissent.

PIAMITER, Justice

(concurring in part and dissenting in part).

I agree that the title to the property involved herein is vested in the City of New Orleans; that Section 8(1) of the City Charter provides specific legislative authority for the sale of city property no longer necessary for public use, except that thereunder the alienation of a public park or public square must be approved in writing by 70% of the property owners within a radius of 300 feet thereof; and that no such approval was secured in this case.

However, I am unable to conclude from the record that “Place du Commerce” was and is in fact a public park or public square. Whether it is to be so considered and treated was not made an issue by the pleadings, and no evidence relating thereto was introduced. The question arose for the first time in this court.

I am of the opinion that the cause, in the .interest of justice and pursuant to.Code of Practice, Article 906, should be remanded to the district court for further proceedings concerning that particular question, grant- . ing leave to both litigants to offer appropriate amendments to their pleadings and to introduce any relevant and otherwise admissible evidence.

      . “A municipal corporation has no implied or incidental authority to alien, or to dispose of for its benefit property dedicated to or held in trust for the public use or extinguish the public uses in such property * * Dillon on Municipal Corporations, Yol. 3, 5th Ed., § 1102, p. 1758.

      . See also Blocker v. City of New Orleans, 50 So.2d 498, wherein the Court of Appeal for the Parish of Orleans held that the City of New Orleans had authority to exchange certain property, known as “Union Square”, for other property to he transferred to it by the'Orleans Par- • ish School Board. That decision was 'inferentially approved by this court -by denial of plaintiff’s application for a writ - of certiorari or review.

      . Excepting public ■ parks and public squares, the destination of which cannot be changed, under special provisions contained in Section '8(1) -of the statute,without the approval in writing of 70% of the property owners within a radius of 800 feet Of such property. In this connection, it is to be noted that, whereas “Commerce Place” is twice referred to in .the majority opinion as a public .park and. .thrice termed á public square, these descriptions were evidently given through inadvertence because there is nothing-in-the record, stipulation of facts- or. exhibits which, characterizes the place either as a public park or a. public square and it is' not contended by anyone that the property ha&"been' destined or used for such purposes. Cf. Blocker v. City of New Orleans, La.App., 50 So.2d 498.

      . ■ Several years ago I pointed out in a - .dissenting, opinion on rehearing in State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65, that the rule that this Court would not consider" 'points which are not either urged or adjudicated upon in the District Court or raised and argued before this Court “ * * * has been breached when the- court was inclined ‘to do so, ' * * See 215 La. at page 1014, 42 So.2d at page 77. In that case, the Court had granted the City of New Orleans a rehearing for the express purpose of considering the question of whether the relator was entitled to receive some $5,700 in salary for which he had rendered no service whatever. Yet it was held -on rehearing that, since the City had not previously questioned the propriety of the judgment on that ground, it would not be considered. I thought that case formed an exception-to the rule which yields when the refusal of the rehearing would work manifest injustice.
      In the ease at bar, however, the. Court, without referring to its decision in the Murtagh case, fails to follow the rule it invoked therein. The applicability of the doctrine to this case, unlike the Murtagh case, seems most pertinent' as it is difficult to perceive why an adjudication favorable to the City on the issues presented for determination herein could possibly work- any injustice to the defendant.

      . These generalities are not very impres-. sive when it is considered that Now Orleans, like most other cities, has many public streets designated as “Place,” such as University Place, Exchange Place, etc.


author: FOURNET, Chief Justice.

text:
    229 La. 277
    Emile M. DOLL v. CITY OF NEW ORLEANS.
    No. 42508.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Henry B. Curtis, City Atty., New Orleans, for appellant.
    Frank P. Krieger, New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The Orleans Parish Civil Sheriff on September 3, 1954, under order of the Register of the State Land Office and following advertisement offered for sale at public auction two adjoining parcels of land in the City of New Orleans, said land having Deen adjudicated to. the State for the unpaid State and Parish taxes of 1931, and application for its sale at auction having been made to the Register of the State Land Office by the plaintiff, Emile M. Doll, as provided in the case of 'such unredeemed property by LSA-R.S. 47:2189. Following the plaintiff’s bid of the minimum statutory price of $3,300 for the two parcels, there being no other bidders he tendered that amount, stating his understanding ,to be that he was acquiring the property free and clear of all encumbrances, including paving liens still of record under which the City of New Orleans asserted claims; and upon the Sheriff declining to accept payment under that condition — because of the (then) recent enactment of the Legislature, Act 536 of 1954, providing that if the amount received -from the sale of State tax-acquired property should be insufficient to pay the taxes and-interest due the State, its parishes and agencies, and municipalities, as well as “the paving liens and interest due the municipalities,” then the property was burdened with the obligation to pay the deficiencies, in the order of preference above mentioned — the plaintiff instituted this proceeding, naming as defendants the City of New Orleans, the Register 'of the State Land Office, and the Civil Sheriff for the Parish of Orleans, for a declaratory judgment decreeing that the sale by the Sheriff transferred to him a title free and clear of all encumbrances, including paving liens, and that upon his payment of the sum of $3,300, a proces verbal of the sale and adjudication was to be delivered to him, followed in due course by a patent from the State. After a hearing, judgment was rendered for the plaintiff, as prayed, the trial judge being of the opinion that Act 536 of 1954 was unconstitutional in that it was not read on three different days in. each house, as required by the Louisiana Constitution of 1921, Article 3,'§ 24, LSA; and consequently our recent decision in the case of City of New Orleans v. Doll, reported in 224 La. 1046, 71 So.2d 562, was controlling here.

•Counsel for the City, in a most perfunctory brief, while admitting. .that “there is very little to be said in the matter,” argue,without citing any authority, that “the requirement of ‘reading every bill on three different days in each house is directory and not mandatory.” In view of the plain and mandatory language of Article 3, § 24 of the Constitution, comment would be superfluous.

For the reasons assigned, the judgment appealed from is affirmed.

      . The purpose of Act 536 of 1954 was to amend and reenact LSA-R.S. 47:2190, dealing with the disposition of the proceeds of sales of immovable property previously adjudicated to the State. In the case of City of New Orleans v. Doll, cited in the text, we held that LSA-R.S. 47:2190, under the provisions of which a purchaser of unredeemed property sold by the State became vested with a clear and unencumbered title (and unsatisfied claims became extinguished if the proceeds of ’ the sale were insufficient to liquidate charges and claims), expressly repealed opposing provisions of the charter of the City of New Orleans, under which liens on property adjudicated to the City or State for unpaid taxes continued in force until fully paid and satisfied; and therefore that the purchaser of land located in the City of New Orleans, previously adjudicated to the State for unpaid taxes, took title free of a paving lien imposed by the City prior to the Statels acquisition of the property.

      . Article 3, § 24, Louisiana Constitution of 1921, provides, in pertinent part, “Every bill Shall be read on three different days in each house, * *


text:
    229 La. 280
    Edward P. CHATELAINE v. GLOBE CONSTRUCTION CO., Inc., Christopher & Schlesinger, a Partnership, and Neil Christopher and Hans Schlesinger.
    No. 41770.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Bienvenu & Culver, John M. Culver, New Orleans, for defendant-appellant.
    Dodd, Hirsch & Barker, Baton Rouge, Thomas J. Meunier, -New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The plaintiff, Edward P. Chatelaine, alleging that by the terms of a contract dated January 4, 1950, between him and the partnership of Christopher & Schlesinger, a house was to be constructed by the Globe Construction Company, Inc. on a certain lot owned by the partners, Neil Christopher and Hans Schlesinger, individually, and upon completion was to be sold to him for $9,300; that he was given possession as agreed, and within six months, due to the poor workmanship of the undertaker, certain defects appeared, in the repair of which he would incur expenses as itemized ■ — sought to recover from the Globe Construction Co., Inc., from the partnership, and from the individual partners, in solido, the alleged cost of making the house whole, including other items of expense classed as damages, in all aggregating $2,031. The defendants entered á general denial; specially-averring that the house was constructed in full compliance with plans and specifications approved by the plaintiff, and under the supervision of building experts of the Veterans Administration. There was a trial by jury and the trial judge rendered judgment for plaintiff for $1,828, based on the jury’s verdict for the amount of the claim less 10%; and the Globe Construction Company, Inc. has appealed.

The building, repair of which is the subject matter of this suit, rests on a 4" thick concrete slab and a surrounding concrete chain wall, the slab being of the kind designated a slab on grade, or a flexible or floating slab, unattached to the chain wall and depending for support on the soil beneath. Under the center partition wall the slab has a measurement of twelve inches in depth to form a center beam for the house, the said house being rectangular "in shape and consisting of four rooms.

The first damage, which appeared suddenly and within six months of completion, ■ was a horizontal YY' crack close to the ground, extending entirely across the outside rear of the house; this crack and inside damage which resulted were repaired to the extent possible by the defendant, but within a short time it became apparent that the house was sinking in the center while the outside walls remained as erected. The defects listed in-plaintiff’s petition, all of which are alleged to have resulted from poor workmanship in preparing ‘ the concrete slab and the soil beneath it,' are that “(1) Asphalt tile in master bedroom has buckled; (2) Closet door in. master bedroom has become out of line and cannot be closed; (3) Kitchen wall has cracked and kitchen door frame is out of level; (4) The floor has pulled away from most of the walls in the house; (5) * * * cracks in the living room wall; (6) * * * numerous cracks in the stucco on the outside of the house; (7) The foundation of the entire house has ‘dished’ — causing it to crack down the entire middle.” The expenses to be incurred in repairing the above defects are: “Shoring of the foundation, $525; Carpentry work, $300; Termite damage, $220; Repainting, $400; Replacing asphalt tile, $301; Expenses in moving while work is being done, $155; Storage of furniture while, work is being done, $50; Renting apartment for approximately one month, $80; Boarding dog for approximately one month, $25.”

The defendant-appellant contends (1) that the case presents a question of fact, and plaintiff has not sustained the burden of- proof that is his; that there is no proof of poor workmanship, and that the matter of damages was not shown with any degree of certainty; moreover, that the case is properly an action quanti minoris, -under Article 2541 of the USA-Civil Code, and since there is no allegation or indication of bad faith, under the jurisprudence of this Court the defendant cannot be held for damages but only for the actual cost of repairs, as to which plaintiff’s estimates were most, inadequate; and (2) that Article 2762 of the LSA-Civil Code, on which the' plaintiff relies, concerns building's which fall into ruin and does not apply in this case, where the trouble was apparently caused by subsidence of the soil; but if the said Article does apply, the defendant is still not liable because the framers of our Civil Code omitted that phrase in the corresponding article of the Code Napoleon which specified “badness of the soil” as one of the causes of a building falling to ruin, and our Courts have refused to hold the contractor liable for damage resulting from such cause — citing Fremont v. Harris, 9 Rob. 23, and Powell v. Markham, 18 La. Ann. 581.

The plaintiff, for his part, contends that the jury’s findings are supported by the record as a whole, and by the testimony of his expert witnesses, i. e., that the subsidence was due to the contractor’s failure either to (1) use proper soil in the fill on which the slab rests, (2) properly tamp and compact the fill to support the type of slab being used, or (3) use proper support under the slab to prevent such dishing.

A study and analysis of the evidence clearly supports the plaintiff’s contention that the cause of the damage was lack of proper support for the • building. The plaintiff contracted, through Christopher & Schlesinger, for the defendant to build the house for him; it (the defendant) is bound by that contract, and having failed to properly construct the building, it is liable for the costs incident to the repair. The question is merely one of quantum.

While a more certain way of knowing the exact amount chargeable to the defendant would have been to have the repair work done and then make claim, the plaintiff chose to first establish the defendant’s liability; and as to certain items listed as expenses, the proof submitted does not provide that degree of certainty required by law. This is true in the case of estimated carpenter repairs, termite damage, and expenses connected with vacating the premises. With respect to plaintiff’s claim that termites have gained access to the house through faulty construction around the bathroom trap (an open space left in the slab for plumbing purposes), as well as his claim for reimbursement of expenses incident to vacating the premises for a month (moving, storage of furniture, rent of apartment, and board for dog), the record is not entirely clear that said items are justifiable at this time. However, that there will be carpenter expense is obvious; and if the plaintiff is placed under the necessity of leaving the premises during the course of the shoring operations and while the other repairs are being made, he would be entitled to recover those expenses as well. Therefore, as to. the above items a nonsuit will be entered.

For the reasons assigned, the judgment of the lower court is amended to reduce the sum awarded the plaintiff from $1,828 to $1,201; a nonsuit is entered as to expenses for carpentry work, repair of termite damage, and those expenses incidental to moving while the work is being done; and in all other respects the judgment appealed from is affirmed; the defendant Globe Construction Company, Inc., to pay all costs.

PONDER, J., absent.

      . Judgment was entered in the lower court dismissing the plaintiff’s suit as to the defendant partnership, Christopher & Schlesinger, and defendants Neil Christopher and Hans Schlesinger, jointly and in solido.

      . “Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.” Article 2541, Revised Civil Code of 1870.

      .“If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness. of -the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ton years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.” Article 2762, Revised Civil Code of 1870.

      . The plaintiff’s argument that, the jury baying heard the evidence and seen the witnesses and the exhibits, and on the basis thereof having concluded that a sum certain should be awarded the plaintiff, its verdict should not be disturbed, is untenable, since a jury is as powerless to render a verdict which is not supported by competent evidence as is a judge to render a valid judgment under like circumstances.


text:
    229 La. 287
    Isaac DES ORMEAUX v. L. P. DUFOUR.
    No. 42008.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Mestayer & Mestayer, New Iberia, for appellant.
    Mouton, Champagne & Colomb, Davidson, Meaux, Onebane & Nehrbass, Douglas J. Nehrbass, Lafayette, for defendant-ap-pellee.
   FOURNET, Chief Justice.

This Court is clearly without jurisdiction of this appeal. Under the well settled jurisprudence of this State, where claims for damages are obviously inflated or exaggerated, or if the nature of the case is such that an award in plaintiff’s favor could not exceed our minimum appellate jurisdiction of $2,000, plaintiff’s allegations as to the amount in dispute do not control. See Bright v. Thompson, 38 La.Ann. 801; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Nick v. Bensberg, 123 La. 351, 48 So. 986; Quaglino v. Curren, 127 La. 126, 53 So. 464; Bloomfield v. Thompson, 133 La. 209, 62 So. 634; French v. Trout Creek Lumber Co., 141 La. 18, 74 So. 575; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817; Buck v. Latimer, 151 La. 883, 92 So. 372; Lo Cicero v. Societa Italiana Di M. B. Cristoforo Columbo, 151 La. 887, 92 So. 373; Buttner v. Palmisano, 152 La. 587, 93 So. 880; Bensel v. Kuhlman, 154 La. 150, 97 So. 347; Guidry v. Breaux, 158 La. 1002, 105 So. 43; Walsh v. Bush, 206 La. 303, 19 So.2d 144; Trahan v. Breaux, 212 La. 459, 32 So.2d 845; Nash v. Curette, 218 La. 789, 51 So.2d 71; Brantley v. Tugwell, 223 La. 763, 66 So.2d 800; Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437.

Plaintiff in this suit is seeking to recover damages for the alleged tortious conversion of two Holstein cows for which he claims $500 each; and in addition he claims the value of two calves that were to be born to the. cows, $100 each; the profits which would have been derived from the milk, estimated at $700; and $200 additional on account of the defendant “in general taking the law into his own hands” — a total of $2,100.

Clearly, the plaintiff would be entitled to recover the two cows .allegedly removed from his premises, or their value, but we do not think he could have reasonably expected to recover to the extent of his claim of $500 for each cow when the record shows that the price paid for the fifty head of cattle purchased from the defendant was a lump sum of $12,000, which averaged $240 per head; and while there is testimony that Holstein cattle are heavier thán Jersey and somewhat more valuable, there is no allegation in the petition from which a conclusion can be drawn that the two cows were worth $500 each, and the proof in the record does not support that value. Moreover, for jurisdictional purposes we are not disposed to consider the claims for the two calves and for the milk which the cows would have produced had the calves been born, these being, in our opinion, too speculative; nor do we think the plaintiff could have reasonably expected to recover the additional $200 (claimed in his petition on the ground that defendant took the law into his own hands, but labeled in his brief as being damages for “inconvenience, etc.”] in the face of his allegation that following the alleged conversion of the cattle and his.demand on defendant that they be returned, he and the defendant entered into a new agreement whereby the defendant “agreed ■ to bring two Holstein cows which would be acceptable to your petitioner in the month of October, 1950” —and it is upon this new agreement that his suit is based, although in his counsel’s argument his claims are grounded on the alleged tortious conversion of the two cows.

For the reasons assigned, this case is ordered transferred to the Court of Appeal, First Circuit, provided that the record is filed in that Court within 30 days from the date on which this decree becomes final; otherwise the appeal shall be dismissed; the appellant to pay the’Costs of this appeal to the Supreme Court; all other costs to await the final disposition of the case.

      . Under the terms of a verbal agreement of about July 1, 1950, the plaintiff purchased from the defendant 50 cows, 25 of these to be Holsteins and 25 to be Jerseys — this being the major portion of defendant’s herd. The remainder of defendant’s cattle were removed from the pasture (at the time under lease to plaintiff, but previously leased by defendant) , and it was later discovered that whereas 50 cows had been left, 27 of them were Jerseys and only 23 were Holsteins.

      . In the recent case of Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437, we held that claims for damages because of alleged harassment and inconvenience, having no basis in Louisiana law in a suit to recover money allegedly due, could not be considered in arriving at the amount in dispute for jurisdictional purposes.