author: GLADNEY, Judge.

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. Henry T. PARKER, Defendant-Appellant.
    No. 8439.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Rehearing Denied Feb. 2, 1956.
    Writ of Certiorari Denied March 26, 1956.
    Irving Ward-Steinman, Alexandria, for appellant.
    Gerard F. Thomas, Jr., Natchitoches, Adams & Reese, New Orleans, for appel-lee.
   GLADNEY, Judge.

From a judgment granting a writ of pre-' liminary injunction restraining him from practicing medicine without a license, the defendant has appealed.

Our attention is directed to a motion by appellee to dismiss the appeal in that it was sought to be accomplished by written motion taken during the vacation of court, and citation of appeal to and service upon ap-pellee was neither prayed for nor obtained. The record supports the facts asserted in the motion to dismiss and it will be sustained.

By brief, and in opposition to the motion to dismiss, counsel for appellant argues: (1) that citation of appeal was waived by silence after a copy of appellant’s motion had been mailed to the attorney for ap-pellee ; (2) that it was the responsibility of the clerk of the District Court to cause to be issued the citation of appeal, if so required by law; and (3) that the procedure followed to obtain the appeal is sanctioned by LSA-R.S. 13:4207 to 13:4210, formerly C.P. art. 542.2.

The first contention has not been established. Waiver of citation and service is permissible but must be shown by consent or conduct. Here, there is not the slightest indication of waiver and appellee has been diligent in asserting his right to have the appeal dismissed. Secondly, the failure to pray for citation of appeal and service in appellant’s motion relieved the clerk of any duty in that respect. Appellant’s third contention is equally untenable. The section of the Revised Statutes relied upon is found in Chapter 23, which relates particularly to “Judgments.” LSA-R.S. 13:4208 authorizes during the vacation of court the rendition of judgments and the taking of appeals therefor, and further it prescribes how notice of a decree or judgment shall be given. The purpose of the legislation is to give validity to judgments rendered and appeals taken at a time when court was not open and to prescribe the manner in which notice of such decrees shall be given, from which begins the delay for taking an appeal. How the appeal shall be taken is not affected thereby. The manner in which an appeal should be accomplished is regulated by C.P. arts. 573, 575, 581 and 583.

Although appeals in Louisiana are favored and will not be dismissed on mere technicalities, C.P. 898; R.S. 13:4433 certain fundamental principles have been set out in the Code of Practice which generally control the effect to be given to an appeal. Thus, appeals must be taken by petition, or by motion in open court at the same term at which the judgment was rendered, which has been interpreted to mean signed. And when the appeal has been granted upon motion in open court at the same term at which the judgment is signed, no citation of appeal or other notice to appellee shall be necessary. After the appeal has been taken and security given, as directed by the court, the clerk shall deliver a copy of the petition of appeal to the sheriff to be served on the appellee, together with a citation to appear before the court of appeal and answer. C.P. arts. 573, 574, 581 and 583.

An appeal shall be dismissed where appellant fails to pray for and cause citation of appeal to be served upon appellee where the appeal is not made at a term in which the judgment was signed. Smith v. O’Reilly Elevator Co., 1914, 134 La. 635, 64 So. 494; King v. First Methodist Church, 1915, 137 La. 879, 69 So. 593; McGaw v. O’Bierne, 1909, 124 La. 989, 50 So. 819; Ducre v. Succession of Ducre, 1928, 167 La. 133, 118 So. 864; Palmisano & Palmisano v. Bonner, 1929, 167 La. 1014, 120 So. 630; Bass v. Lane, 1930, 169 La. 681, 125 So. 853; Jacobsen v. McGarry, 1933, 178 La. 79, 150 So. 838; Roy v. Succession of Vercher, La.App.1934, 152 So. 385; Pool v. Gaudin, 1945, 207 La. 403, 21 So.2d 424; Graves v. D’Artois, 1946, 210 La. 857, 28 So.2d 457; Berg v. Home, La.App.1946, 26 So.2d 753; Bolton v. Mansfield Hardwood Lumber Company, La.App.1954, 70 So.2d 228.

In Jacobsen v. McGarry, supra, in commenting upon the basis for dismissing of the appeal upon circumstances similar to those presented here, the court said in 150 So. at pages 838, 839:

“There are numerous cases which hold that, where the party cast applies for an appeal by motion at a term subsequent to the one at which the judgment was rendered without praying for the issuance of citation, the failure to cite the appellee is not attributable to the clerk of court, but to the fault of the appellant himself. * * *
“Citation of appeal is dispensed with only when the appeal is applied for, either by petition or by motion in open court, at the same term at which the judgment is rendered. Code Prac. arts. 573, 574. Under a fiction of law the appellee is considered as then in court. But, when the term passes, the appellee is entitled to formal citation. Code Prac. arts. 581, 582, 583. In such a case citation is the ground work, and without it no proceedings can be had on the appeal. Walker v. Martolo, 16 La. 50. Hence appellee’s motion to dismiss raises a jurisdictional question, not a technical question, and must prevail.”

For the reasons herein given this appeal is dismissed at appellant’s cost.


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    Manuel GREEN, Plaintiff-Appellant, v. COAL OPERATORS CASUALTY COMPANY, Defendant-Appellee.
    No. 8450.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Rehearing Denied Feb. 2, 1956.
    Julius T. Long, Shreveport, for appellant.
    Gravel & Downs, Guy Humphries, Jr., Alexandria, for appellee.
   HARDY, Judge.

This is a suit for compensation in which plaintiff seeks recovery for total, permanent disability from his employer’s insurance carrier. After trial there was judgment rejecting plaintiff’s demands as of nonsuit, from which he brings this appeal. Defendant has answered the appeal praying that plaintiff’s demands be rejected with prejudice.

While engaged in cutting pulpwood on a tract of land in Rapides Parish on March 30, 1954, plaintiff was struck on the head by a small tree which he was engaged in felling. A splinter of wood lodged in plaintiff’s right eye, allegedly causing the disability for which he seeks the award of compensation. Plaintiff was taken to Dr. Ben Fendler for examination and treatment and the foreign body, located at a 5 o’clock position on the cornea of the right eye, was removed. According to the testimony of Dr. Fendler, on trial of the case, the splinter was rather deeply imbedded in the cornea at the edge of the pupillary area but did not penetrate the interior of the eye.

Plaintiff contends that as a result of the accidental injury he has suffered a loss of vision in his right eye which has resulted in total and permanent disability to do work of the same or a similar character as that which he was performing at the time of the accident. The defendant insurer asserts that plaintiff’s defective vision existed pri- or to the accident and was the result of a pigmentary degeneration of the fundus of both eyes, more pronounced in the right eye, and, further, that plaintiff has failed to establish the alleged disability.

The opinion of the medical experts, who testified on trial and by deposition, is in conflict. Drs. Fendler and Quantz, for defendant, advanced the opinion that the pig-mentary deterioration was the cause of plaintiff’s defective vision in his right eye, which was evaluated by examination to be 20-50; that this cause had existed for some considerable period of time and was not effected by the accidental injury. Both doctors acknowledged the existence of a residual scar on the cornea of plaintiff’s eye, but expressed the opinion that this defect had no relation to plaintiff’s defective vision. On the other hand, Dr. Dorf Bean, for plaintiff, was of the opinion that plaintiff’s loss of vision in the right eye could be attributable to the injury.

Under the circumstances of the serious conflict of opinion in the instant case we think it proper to give consideration to the lay testimony adduced. Plaintiff himself testified that he experienced no impairment of vision until after the accident; that pri- or to his injury his vision was normal, whereas since the accident he was definitely troubled by the impairment of the sight of the right eye and attempted to compensate the loss of vision by “squinting” the eye. Along this line plaintiff further testified that he could improve his sight by entirely blinding his right eye. All three of the medical experts observed and noted the strabismus or squint, but, since their examinations were made subsequent to the injury, they could not testify as to the duration of this affection. Examination of the testimony convinces us that plaintiff has successfully established by a preponderance of the evidence the fact that the squint did not exist prior to the accident and it can only be logically concluded that it developed as the result of plaintiff’s unconscious attempt to compensate for the loss of vision.

Our appreciation of the evidence adduced on trial leads us to the conclusion that plaintiff has succeeded in establishing the serious and permanent impairment of a physical function and is entitled to an award under the provisions of LSA-R.S. 23:1221 (4) (P).

In this connection we are further resolved that plaintiff has signally failed to establish his alleged permanent and total disability to do work of the same or similar character as that in which he was engaged at the time of the accident and thereby entitled him to an award under the provisions of the statute bearing upon total and permanent disability. The record is singularly free from any substantial evidence on this point and plaintiff himself testified that he believed he was able to cut “some” pulpwood but would be unable to obtain this nature of work because of his defective vision. Since the effect of this testimony of plaintiff himself negatives his contention of permanent total disability, it is obvious that compensation should not be awarded upon this basis. The record does not show that since the accident plaintiff has sought employment, nor that he has attempted to perform the same character of work.

We quite appreciate the position taken by our brother of the district court in rejecting plaintiff’s demands as of nonsuit upon the authority of the action taken by this court in Brown v. Mansfield Hardwood Lumber Co., La.App., 50 So.2d 116. Unquestionably the cited case is analogous to the extent that the facts as established in both cases were insufficient to justify a finding of permanent and total disability. However the distinction in the cases lies in the fact that in the instant case we think the evidence preponderates in support of a finding of serious and permanent impairment of the physical function of plaintiff's right eye. It follows that plaintiff was entitled to relief under his alternative claim, and, in our opinion, the judgment refusing such relief was erroneous. We are reinforced in this conclusion by our opinion that no practical purpose would be served by a re-trial of the instant case. Counsel for defendant, in brief, has unequivocally declared that nothing can be gained by re-trial, and that all available testimony was introduced on original trial hereof. Counsel for plaintiff has impliedly acquiesced in this position by his failure to suggest either in argument or brief the possibility of additional evidence.

For the reasons assigned the judgment appealed from is annulled and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Manuel Green, and against the defendant, Coal Operators Casualty Company, awarding plaintiff compensation at the rate of $28.50 per week for a period of 100 weeks from date of March 30, 1954, subject to credit for compensation already paid, with interest on past due installments at the legal rate, and for all costs.


text:
    Jim ANDERSON, Plaintiff-Appellee, v. Vercie FINLEY, Defendant, Dave C. Coleman, Intervenor-Appellant.
    No. 8379.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Peterman & Burden, Alexandria, for appellant.
    Martin S. Sanders, Jr., Olla, H. L. Allen, Winnfield, for appellee.
   GLADNEY, Judge.

The defendant executed a special mortgage on his home in LaSalle Parish and in the act of mortgage specially waived his homestead rights. The mortgage, evidenced by a $2,000 note, was foreclosed and the property bid in for $1,769 by plaintiff, the holder and owner of the note. Prior to disbursement by the sheriff of the proceeds of the sale, Dave Coleman filed a petition of intervention and opposed plaintiff’s claim asserting he was entitled to the proceeds to the extent of a judgment owned by him which was recorded in the mortgage records of LaSalle Parish prior to the recordation of plaintiff’s special mortgage. Finley also appeared in answer to claim his right to any money from the sale price up to $4,000 subject, however, to his indebtedness on the mortgage note.

The matter was tried upon a rule upon the sheriff to show cause why plaintiff should not receive the proceeds from the sale as a credit upon the mortgage note. Upon the issues so presented the rule was tried and resulted' in a judgment which recognized the homestead, its waiver in favor of plaintiff, and directed the sheriff to pay to plaintiff the proceeds received from the sale of his property under the writ of executory process with preference and priority over Dave C. Coleman, the intervenor.

From the judgment Coleman has appealed, and in brief before this court contends that the judgment from which appealed is in error, for the reason that the evidence does not show Anderson gave any valid consideration for the note, and that the evidence discloses Finley had abandoned his homestead at the time of seizure and, therefore, had no interest in the distribution of the proceeds of the sale by the sheriff.

Vercie Finley testified without contradiction that the mortgage was executed by him to secure an antecedent debt for $2,000 and further, except for some temporary absences which never lasted more than two or three months, that he, a married man with a family, lived upon the property described in the mortgage from the year 1947 until the time of trial.

Entitlement to homestead exemption is granted by Article XI of the Louisiana Constitution and Article 645 of the Code of Practice, wherein there is exempted from seizure and sale a bona fide homestead owned by the debtor and occupied by him not exceeding one hundred sixty acres, which, together with other movable or personal property, is affected by the exemption to a total value of not more than $4,000. The exemption was formerly limited to $2,000. This constitutional article also permits a waiver of the homestead but provides, inter alia, that if the head of the house is married and not separated from bed and board from the other spouse, the waiver shall not be effective unless signed by the latter.

In Brantley v. Pruitt, 1932, 175 La. 879, 144 So. 604, 605, 606, the Supreme Court observed:

“As early as the 40th La. Ann., Denis v. Gayle (40 La.Ann. 286, 4 So. 3), this court laid down four indispensable conditions for a debtor to combine in himself in order to claim exemption of property as a homestead, viz.:
“(a) He must be the bona fide owner of the land;
“(b) He must occupy the premises as a residence;
“(c) He must have a family or person or persons dependent on him for support;
“(d) And the property must not exceed in value $2,000.”

It is likewise true that abandonment of a homestead will not be presumed and the burden of showing abandonment is upon the creditor so asserting. St. Mary Bank & Trust Co. v. Daigle, 1911, 128 La. 758, 55 So. 345; Hardesty v. Warner, 1912, 130 La. 735, 58 So. 527; First Nat. Bank of Crowley v. Brooks, 1927, 164 La. 297, 113 So. 853; Minden Hardware & Furniture Co., Inc. v. Smith, 1928, 165 La. 98, 115 So. 381; Smith v. Marino, 1947, La.App., 28 So.2d 780, rehearing denied 29 So.2d 390.

The affirmative uncontradicted testimony of Finley warrants our holding there was a bona fide homestead. It is also conclusively shown the special mortgage in favor of Anderson was supported by consideration' — the pre-existing debt— to which Finley testified.

Appellant concedes in brief, if the mortgage was supported by consideration, and if defendant was entitled to the homestead exemption, the proceeds from the sale of the property should be paid to plaintiff. It is, of course, recognized by our jurisprudence that a mortgagee in whose favor a waiver of homestead has been made, takes precedence over a prior mortgagee whose act contains no waiver of the homestead exemption. Hardesty v. Warner, 1912, 130 La. 735, 58 So. 527; Bank of Erath v. Broussard, 1926, 161 La. 657, 109 So. 347.

It follows from our findings there is no manifest error in the judgment from which appealed. Accordingly, it is hereby affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    BUILDERS LUMBER AND SUPPLY COMPANY, Plaintiff-Appellant, v. Byrne WILSON, Defendant-Appellee.
    No. 8384.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 1956.

      Polk & Foote, Alexandria, for appellant.
    Holt & Holt, Alexandria, for appellee.
   AYRES, Judge.

Plaintiff instituted this action to recover of the defendant $391.46, which amount was allegedly due because of defendant’s failure to comply with obligations assumed by him under a contract of assignment.

From a judgment in defendant’s favor, plaintiff appealed.

The facts as established by the record, briefly stated, are as follows:

Defendant as the owner of a lot situated in Rapides Parish, Louisiana, by written contract dated April 28, 1953, contracted with one Leo L. Beck to build and construct a brick veneer residence, according to plans and specifications annexed thereto, for a consideration of $7,600 to be paid to the said Leo L. Beck “upon the completion of the said building”. Subsequently, on May 8, 1953, plaintiff, Builders Lumber & Supply Company, procured a judgment against Beck in the principal sum of $999.40, the balance due on which as of June 6y 1953, .was $611.46, on which date Beck assigned unto the said Builders Lumber & Supply Company until said indebtedness shall have been paid in full “any and all monies and other remuneration which might now or hereafter be due, owing and payable to him by Byrne Wilson” under the aforesaid building contract “as they might and shall become due and payable to the said L. L. Beck”. It was further provided, however, that Beck was to be permitted to retain the sum of $30 per week, which was excluded from the assignment. Wilson acknowledged notice of said assignment and consented and agreed thereto.

Beck was unable to carry out his contract with Wilson, or to buy the materials therefor or to pay the labor, without financial assistance. Accordingly, an agreement was entered into between him and Martin Building Materials Company, Inc., whereby the latter was to finance the construction under said contract by furnishing the materials therefor and the funds for the labor pay rolls. For its own security, the Martin Building Materials Company, Inc., required a mortgage from Wilson on the property proposed to be improved. This arrangement was referred to as an interim financial agreement. The eventual payment for the construction was to be made by the Rapides Bank & Trust Company, pursuant to a mortgage to be executed under the provisions of an F. H. A. commitment.

Beck began the performance of his contract with materials and funds furnished and/or provided by Martin Building Materials Company, Inc. During this time two checks of the Martin Company, made payable to Beck and Wilson in an aggregate amount of $220, were delivered to plaintiff in accordance with the assignment, and the indebtedness was accordingly reduced to the amount herein claimed.

However, Beck failed to complete the residence and defaulted in his contract, after which he left the State. The owner, Wilson, then proceeded with financial support from the Martin Building Materials Company, Inc., to complete the construction of the residence, following which the loan as originally contemplated was obtained from the Rapides Bank & Trust Company, the proceeds of which were delivered to the Martin company in payment of the materials and funds furnished and provided by it. According to the record, the Martin company expended $7,472.36 for labor and materials on this project, plus an unspecified amount for • interest charges. It was only with the assistance of the Martin company that Beck undertook this work. After he defaulted it was necessary that Wilson undertake the completion of the improvements as contracted by Beck. The Martin company, by reason of its previous advances and the materials already furnished, likewise had an interest in seeing that the work was completed and that the F. H. A. loan eventually be obtained.

It is not shown that Beck received anything out of the cash advances other than that to which he was entitled under the terms of the assignment. In the absence of such a showing, it appears to have been established that the entire payments and advances were for the payment of labor. Neither is there any showing that Wilson is indebted unto Beck for any particular amount as representing the value of Beck’s services, in partially executing his contract, nor was such plaintiff’s contention. Although the record does not show Wilson received anything for his services in com--pleting the contract, it is established that-the amount expended for materials and the labor of others as well as other incidental expenses practically consumed the entire contract price.

The details of the financial arrangements and expenditures were in the possession of Martin Building Materials Company, Inc., a third person so far as the defendant, Byrne Wilson, is concerned, and the information contained in its records was not therefore particularly and peculiarly within the knowledge and possession of the defendant. Hence, the bur-den was upon the plaintiff to establish that Beck was due funds under .the contract which he has never received or that he received funds under the contract which should have been paid to plaintiff under the assignment, and not upon defendant to prove the contrary. The record fails to support either of these propositions. By the very terms of the contract Beck was to be paid the price thereof “upon the completion of the said building”. It is conceded that he defaulted; he never completed the ' contract. , Whatever amount may have been due Beck would necessarily be upon a quantum rperuit basis, the proof of which is totally lacking.

We find no manifest error in the judgment appealed and, accordingly, it is affirmed at appellant’s cost.

Affirmed.


text:
    Ed VAUGHN, Plaintiff-Appellee, v. Tony DE BONA, Defendant-Appellant.
    No. 8387.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Holt & Holt, Alexandria, for appellant.
    George M. Foote, Alexandria, for appel-lee.
   HARDY, Judge.

Plaintiff sued on a verbal contract to recover the sum of $535.24 representing the labor and materials furnished in the construction of a large truck trailer for defendant. After trial there was judgment in favor of plaintiff in the full amount prayed, from which judgment defendant has appealed.

Plaintiff alleged a verbal contract and agreement with defendant under which plaintiff bound himself to construct a trailer in accordance with the general instructions and specifications given by defendant in consideration of the payment of the sum of $350 representing cost of labor, plus such additional amounts as might be expended by plaintiff for parts and materials; that the building of the trailer was completed within a period of approximately three weeks, delivered to and received by the defendant, who continued in the possession and use thereof, and that plaintiff had furnished parts and materials in a total amount of $174.75, together with the sum of $10.49 paid as sales tax, for which amounts he claimed recovery in addition to the sum of $350 representing the agreed price for his labor.

In answer defendant generally denied the allegations of plaintiff’s petition but admitted the existence of an agreement for the building of the trailer, averring that the sum of $75 was the price agreed for plaintiff’s work and labor in building the trailer.

The record establishes most of the facts beyond question. Plaintiff is engaged in and operates a shop for making and repairing movable goods and machinery. A few months before beginning construction of the trailer which is here involved, plaintiff had built a small two-wheel trailer for defendant for the sum of $75. The trailer which was subsequently constructed, under the agreement here sued upon, was a heavy-duty eight-wheel vehicle approximately 20 feet in length and 8 feet in width, provided with a hinged ramp and designed for carrying heavy loads, particularly tractors and other machinery. The trailer was constructed of steel I-beams, reinforced with channel iron and heavy iron plates. The construction of the vehicle required between two and three weeks time, and, upon completion, it was delivered to and, apparently, satisfactorily used by defendant.

The only issue which appears to be presented by this appeal requires simply the determination of the fact as to whether plaintiff is entitled to the sum of $350 for his labor in constructing the trailer or to the sum of $75 as contended by defendant. No real point seems to have been raised with reference to the actual expenditure of the amounts claimed by plaintiff for materials and sales tax, which expenditures appear to be amply substantiated by the record.

We note that counsel for defendant urges the application of Article 2277 of the LSA-Civil Code requiring proof of contracts or agreements above $500 in value by at least one credible witness and other corroborative circumstances, which point was given due consideration by the district judge in his written opinion. We question the applicability of the article under the circumstances of the instant case inasmuch as it was not necessary for plaintiff to prove a contract or agreement involving an amount in excess of $500. The defendant admitted the existence of an agreement and further admitted, in answer, his liability to the extent of $75 as compensation for plaintiff’s labor. This admission served to reduce the difference claimed by plaintiff to an amount of less than $500. Additionally, if we consider defendant’s liability for materials and parts furnished by plaintiff, with reference to which he makes no contest, the amount is still further reduced. As a consequence, the actual amount in contest in this suit involves the sum of $275 since plaintiff claims $350 and defendant admits an obligation to the extent of $75.

It follows, in our opinion, that consideration of the requirements of the codal article in connection with the facts in the instant case would be purely academic, in any event, this question is rendered still more abstract in nature because, as quite properly found by the district judge, the plaintiff has successfully met the requirements of the Article in that he has established his contention by one credible witness and other corroborating circumstances.

We think no good purpose would be served by recapitulating in detail the testimony of the witnesses on trial of the case. Examination of the testimony convinces us beyond any possibility of doubt that plaintiff has made out his case by far more than the requisite preponderance of evidence. Indeed, the facts and circumstances, in themselves, speak so convincingly that they scarcely require the attestation of human witnesses. The contention of defendant that an individual engaged in plaintiff’s business would devote his labor and skill in constructing a vehicle of the nature here involved over a period of some two to three weeks for the remuneration of a mere pittance of $75 is so utterly unreasonable that it can only be regarded as absurd. That this has been fully realized by defendant’s counsel is evident from the conclusion of his brief before this court by which he urges a reduction of the judgment to a total sum not exceeding $375.

We find no error in the resolution of this case as made by our distinguished brother of the district court and it follows that the judgment appealed from should be, and accordingly it is, affirmed at appellant’s cost.


text:
    Thelma Gates MORROW, Plaintiff-Appellee, v. BUNKIE COCA COLA BOTTLING COMPANY, Incorporated, Defendant-Appellant.
    No. 8389.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Earl Edwards, Ryan J. Couvillion, Marks-ville, for appellant.
    Philo Coco, Marksville, for appellee.
   GLADNEY, Judge.

This is an action in tort by plaintiff, who alleges she became ill as a result of drinking a portion of the contents of a bottle of Coca Cola containing a foreign or. deleterious substance. The Bunkie. Coca Cola Bottling Company, Inc., the manufacturer and distributor of the bottled beverage, is made defendant. The case is on appeal from a judgment on the merits rendered in favor of plaintiff.

The evidence is free from serious dispute. Plaintiff, an operator and owner of a beauty shop in Bunkie, Louisiana, on May 8, 1953, was in her place of business at which time there were also present Mrs. Nell Newton, Mrs. E. Cole and Mrs. Evelyn Reynolds. In the presence of the above named persons she secured a bottle of Coca Cola from a coin operated self-dispensing machine situated in the reception room of the beauty shop; and after opening the bottle had drunk about one-half of its contents when she felt within her mouth some foreign, slimy substance, and within a short time became acutely ill and so nauseated that she had to secure medical attention from Dr. J. G. Dupree, who also treated her on May 11 and 23, 1953. For a period of thirty days she was weak and could only partially attend to her business. Her testimony was corroborated by Mrs. Nell Newton, Mrs. E. Cole and Mrs. Evelyn Reynolds.

The dispensing machine from which plaintiff obtained the bottle was leased by plaintiff from the defendant and was from time to time refilled by an employee of the defendant, except that on some occasions it was filled by an employee of plaintiff from reserve' cases purchased by plaintiff and stacked conveniently near the machine. Not infrequently a key which opened the machine remained in the lock.

The remainder of the contents of the offending bottle of Coca Cola was forwarded to Law' & Company, consulting and' analytical chemists of Atlanta, Georgia, who gave the following report on the contents so analyzed by them:

“This liquid sample contained much brownish sediment.
“The liquid had a sour odor when received. A small amount of free phosphoric acid was present.
“The sediment was mainly inorganic and consisted of sand and clay (dirt). Some iron oxide was present. Some •coarse, dark organic matter was found, chiefly paper fibers, plant tissue, mold growths and trash.
“No arsenic was found and no heavy metals.”

Defendant presented evidence describing its methods of bottling and inspection, which it contended rendered it highly improbable any foreign substance could get into the bottle or its contents before being capped and made ready for consumption by the public. It was admitted, however, that it had delivered to plaintiff the bottles which were placed in the dispensing machine, and further, that over a period of sixteen years it had received some complaints about foreign particles in the capped bottles, and it was possible for such to occur.

The proof offered in support of plaintiff’s case, it may well be conceded, conclusively shows that defendant was the distributor of the offending bottle; that there was a foreign substance in the bottle, and that she suffered injury by reason of its presence therein. Plaintiff, however, did not tender independent proof that the bottle containing the deleterious ingredient had not been tampered with or improperly handled after it left defendant’s possession. Thus, it was entirely possible for anyone-in plaintiff’s place of business to tamper with and recap a bottle being removed and uncapped for consumption. The evidence does reasonably show an absence of any indication of having been opened prior to the time it was uncapped by Mrs. Morrow.

In his assigned reasons for judgment the District Judge held that under the decision of Le Blanc v. Louisiana Coca Cola Bottling Co., 1952, 221 La. 919, 60 So.2d 873, plaintiff had made out her case by a preponderance of the evidence. Prior to the Supreme Court decision of the Le Blanc case, in actions predicated on an injury from a foreign or deleterious substance in a bottled beverage it was incumbent upon a plaintiff to prove not only the source-of the bottle, the presence of the substance and injury therefrom, but it was also necessary to show by independent proof that the bottled drink had not been tampered •with or improperly handled after it left defendanfs bottler’s possession, and if the evidence failed of proof in this latter respect, the doctrine of res ipsa loquitur could not be invoked. This ruling was applied in the following cases: Jenkins v. Bogalusa Coca Cola Bottling Co., 1941, La.App., 1 So.2d 426; White v. Coca Cola Bottling Co., 1943, La.App., 16 So.2d 579; Rowton v. Ruston Coca Cola Bottling Co., Inc., 1944, La.App., 17 So.2d 851; Camp v. Homer Coca Cola Bottling Co., Inc., 1944, La.App., 20 So.2d 186; Mayerhefer v. Louisiana Coca Cola Bottling Co., 1951, 219 La. 320, 52 So.2d 866; Nichols v. Louisiana Coca Cola Bottling Co., 1950, La.App., 46 So.2d 695; and Day v. Hammond Coca Cola Bottling Co., 1951, La.App., 53 So.2d 447.

Other cases principally by way of dicta seemed to approve a rule whereby after it was shown by a preponderance of evidence the beverage contained a foreign substance, plaintiff consumed it, and was ill as a result, the burden of proof then shifted to the defendant to show the foreign matter did not enter the beverage during the bottling or manufacturing process. Doyle v. Fuerst & Kraemer, 1911, 129 La. 838, 56 So. 906, 40 L.R.A.,N.S., 480; Costello v. Morrison Cafeteria Co. of Louisiana, Inc., 1931, 18 La.App. 40, 135 So. 245; Hill v. Louisiana Coca Cola Bottling Co., 1936, La.App,, 170 So. 45; MacLehan v. Loft Candy Stores, Inc., 1937, La.App., 172 So. 367; Dye v. American Beverage Co., Inc., 1940, La.App., 194 So. 438.

In following the views expressed in Hill v. Louisiana Coca Cola Bottling Co. and Dye v. American Beverage Co., supra, the opinion in the Le Blanc case had this to say [221 La. 919, 60 So.2d 874]:

“In the Dye case it was stated that:
“' * * * where the plaintiff shows by a preponderance of evidence that the beverage contained a foreign substance, that ■ he. consumed it and suffered injuries as a result, the burden of proof shifts to the defendant to excuse itself from liability by proving to the satisfaction of the court that the foreign matter did not enter the beverage during the bottling or manufacturing process.’
“The ruling in the Dye case is predicated, of course, on the assumption that the plaintiff has shown that he purchased the beverage in its original container, a capped and airtight bottle for — obviously, without such proof there is no occasion to indulge in any sort of presumption. But, when it is shown that there was nothing unusual about the bottle and that it was in apparent good condition at the time plaintiff uncapped it, it is logical to infer that it had not been mishandled or its contents disturbed after it left the manufacturer’s plant for distribution. Accordingly, when, under such circumstances, plaintiff proves that the beverage contains unwholesome matter and that he sustained injury from its consumption, he establishes a prima facie case for the assessment of damages.”

The decision in the Le Blanc case thus has departed from the rule heretofore followed in those decisions which imposed strict conditions precedent upon the plaintiff before the doctrine of res ipsa loquitur could be imposed. Since, as in the instant case the plaintiff in the Le Blanc case did not tender independent proof the bottle containing the deleterious ingredient had not been tampered with or improperly handled after it left defendant’s possession, but did show that there was nothing unusual about the bottle and that it was in apparent good condition at the time plaintiff uncapped it, the facts of the two cases cannot be distinguished. The plaintiff herein therefore, must be held to have established her case.

Plaintiff was acutely ill after drinking the contaminated beverage and such illness persisted with some discomfort for some thirty days. The District Judge allowed as damages $515, which included medical expenses. The amount so allowed appears to us to be neither excessive nor inadequate. It follows from our findings as hereinabove set forth, that the judgment from which appealed should be and is hereby affirmed at appellant’s cost.


text:
    Truitt C. RYAN, Plaintiff-Appellee, v. Sam LAPRAIRIE, Defendant-Appellant.
    No. 8406.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Earl Edwards, Maxwell J. Bordelon, Marksville, for appellant.
    Edwin L. Lafargue, Marksville, for ap-pellee.
   HARDY, Judge.

This is a petitory action in which plaintiff seeks to be recognized and confirmed as the lawful owner of a tract of land containing 17 acres, more or less, situated in Avoyelles Parish, Louisiana. From judgment in favor of plaintiff defendant has appealed.

The tract of land which is involved in this litigation is a part of the NW of iNE^ of Section 7, Township 3 North, Range 4 East, in Avoyelles Parish, of which sectional subdivision this defendant was the one-time owner. By duly executed and recorded authentic acts of conveyance title to the tract of land here involved was vested in plaintiff. Since the interpretation of the description of the property is the crux of this case, we set forth the parties and the descriptions given in these several acts, as follows:

(1). By instrument dated January 10, 1940, Sam Laprairie sold to Charlie C. Dodge the following described tract:
Ten acres to be taken out of the Eastern portion of the Northwest Quarter of the Southeast Quarter (NW of SE14) of Section Seven (7), Township three North, Range Four East (T3N R4E),
Being a part of the same property acquired by Sam Laprairie from George Cox by deed recorded in Book A-81, at page 501, of the Records of the Parish of Avoyelles, Louisiana.
(2). By instrument dated March 10, 1949, Charles C. Dodge et al. sold to ■ Sam Laprairie the following described property:
A certain tract or parcel of land being situated in Avoyelles Parish, Louisiana and more particularly described as the East Half of East Half of Northwest Quarter of Southeast Quarter of Section 7, T3N, R4E and containing ten acres, and bounded north and west by Sam Laprairie, south by Mrs. Lydia Hayes and east by Avoyelles Trust and Savings Bank.
(3). By instrument dated October 31, 1949, Sam Laprairie sold to I. M. Cole the following described property:
A certain tract or parcel of land being situated in Avoyelles Parish, Louisiana, containing ten acres, more or less, lying in and forming a portion of the East half of Northwest Quarter. of Section 7, T3N, R4E, same being bounded on the north and west by vendor, south by Mrs. Lydia Hayes and east by Avoyelles Trust and Savings Bank.
It being the intention of the parties herein that the tract herein sold is the identical tract and all of the acreage as contained within the present fence surrounding said tract, said fence haying been constructed by purchaser and vendor.
Being the same tract acquired by vendor from Charles C. Dodge et al. on March 10, 1949 as per deed recorded in Al. Book A-137 at page 35 records of Avoyelles Parish, La.
The ' vendor, Sam Laprairie does hereby reserve the right of passage of a sufficient width over and across the southern edge of the tract herein conveyed.
(4). By instrument dated October 23, 1954, Isaac M. Coie sold to Truitt C. Ryan, plaintiff herein, the following described property:
Tract No. 3: A certain tract or parcel of land together with the improvements thereon, containing seventeen (17) acres, more or less, situated in the First Ward of the Parish of Avoyelles, State of Louisiana, being all or a portion of the East One-Half of the Northwest Quarter of the Southeast Quarter of Section Seven, Township Three North, Range Four East (Ei/4 of NW>4 of SE}4 Sec. 7, T3N, R4E), North of Red River, and being bounded on the North and West by Sam Laprairie, on the South by Tract No. 2 hereinabove described, and on the East by the Avoyelles Bank & Trust Co. It being understood and agreed that this tract of land is limited to the area presently enclosed by fence and occupied by vendor. Being the same property acquired by vendor herein by deed recorded in Conveyance Book A-139, folio 353, of the Records of Avoyelles Parish, Louisiana.

In his petition in this suit plaintiff alleged that he was the owner of the tract of land containing 17 acres by virtue of the deed from Isaac M. Cole, which is the last hereinabove enumerated; that on or about the first day of January, 1955, the defendant, Sam -Laprairie, constructed a fence around the westernmost 7 acres of the above described tract of land, since which time said defendant claimed ownership thereof and refused to deliver possession to petitioner.

By answer defendant averred that plaintiff’s ownership was restricted to the ten acres of land which defendant had conveyed to Isaac M. Cole under the description as set forth in (3) above.

It is evident that this suit concerns the ownership of the West 7 acres of a 17 acre tract of land, and it is equally obvious that the resolution of the issue tendered depends upon an interpretation of the descriptive calls in the several deeds of conveyance involving the parties plaintiff and defendant.

The opposing contentions of the parties litigant are predicated upon the description set forth in the deed from this defendant, Sam Laprairie, to I. M. Cole, plaintiff’s vendor. Plaintiff relies upon that portion of the description which recites:

“It being the intention of the parties herein that the tract herein sold is the identical tract and all of the acreage as contained within the present fence surrounding said tract, said fence having been constructed by purchaser and vendor.”

The record in the instant case conclusively establishes the fact that the tract of land enclosed by the fence to which reference is made in the above described instrument contained some 17 acres, more or less, and it is the ownership of this acreage under the quoted description upon which plaintiff rests his case.

To the contrary defendant points out two other calls of the description in the same deed of conveyance as follows:

“A certain tract or parcel of land being situated in Avoyelles Parish, Louisiana, containing ten acres, more or less * *
'‘Being the same tract acquired by vendor from Charles C. Dodge, et al. on March 10th, 1949 * * *.”

Reference to the conveyance from Charles C. Dodge, et al. to the defendant, Laprairie, as first above set forth in (2), discloses the description of the property as covering a tract or parcel of land containing ten acres.

Under the ambiguous and conflicting descriptive calls in the deed from Laprairie to Cole the position taken by each of the parties litigant in this suit is readily understandable and a resolution of the contest can only be made upon the basis of an ■examination and determination of the intention of the parties at the time.

We think the testimony of I. M. Cole and of the notary who prepared the instrument of conveyance from Laprairie to Cole is determinative of the issue. Cole, who can neither read nor write the English language, testified that he and Laprairie visited the office of the notary and requested him to draw the deed of conveyance. The notary ascertained the description from the records in the Parish Court House, prepared the deed according to such •description and read it to the parties. Thereupon Cole protested that the description as written in the deed meant nothing to him; that he intended to purchase the entire tract of land which was under fence ■and that he would not accept the deed unless the description was thus amended. The notary rewrote the deed and incorporated therein the descriptive call comprehending all acreage within the fenced boundary as embodying the intention of the parties. This testimony of Cole was •corroborated in every material respect by the testimony of the notary.

Unquestionably the sale from Laprairie to Cole constituted a sale per aversionem, which nature of conveyance has been many times interpreted by our courts as affecting and embracing the land within the boundaries fixed, whether the tract be more or less than the stated quantity; Carlisle v. Graves, La.App., 64 So.2d 456; Aucoin v. Marcel, La.App., 38 So.2d 81; Egle v. Constantin, 198 La. 899, 5 So.2d 281; Consolidated Companies, Inc., v. Haas Land Co., 179 La. 19, 153 So. 6; Passera v. City of New Orleans, 167 La. 199, 118 So. 887.

The jurisprudence on this point simply serves to implement and elaborate the provisions of Article 854 of the LSA-Civil Code which reads as follows:

“If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.” (Emphasis supplied.)

Our jurisprudence has further established an order of precedence or rank controlling descriptive terms with reference to the conveyance of land and both quantity and distances must yield to the superior description as comprehended by boundaries specified, either natural or artificial ; Carlisle v. Graves, supra, Aucoin v. Marcel, supra; Dufrene v. Bernstein, 190 La. 66, 181 So. 859; Meyer v. Comegys, 147 La. 851, 86 So. 307.

It is quite true that the specifications of acreage is an evidence of intention but such evidence, as we have above pointed out, is the weakest of all the descriptive terms and therefore must yield to others; Carlisle v. Graves, supra; W. B. Thompson & Co. v. McNair, 199 La. 918, 7 So.2d 184.

Application of the legal principles above considered to the indisputably established facts of the instant case convincingly serves, to justify plaintiff’s position and his asserted right to title and possession of the property described.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost, and plaintiff is decreed to be the true and lawful owner and as such entitled to the possession of the easternmost seventeen acres, more or less, of the NW^ of the SEj4 of Section 7, T3N, R4E, District North of Red River in Avoyelles Parish, Louisiana, the west boundary of said property being a line running north and south along the fence line of a fence that was constructed by defendant and which formed the west boundary of the said property at the time that defendant sold said property to Isaac M. Cole on October 31, 1949.


text:
    Mrs. Ernestine HALL, et al., Plaintiff-Appellant, v. The TOWN OF JENA, Defendant-Appellee.
    No. 8458.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Parker & Parker, Jena, for appellant.
    Martin S. Sanders, Jr., Olla, Stafford & Pitts, Alexandria, for appellee.
   HARDY, Judge.

This is a suit by husband and wife for the recovery of damages resulting from personal injuries accidentally sustained by the plaintiff wife. Plaintiff’s original petition named the Town of Jena as defendant but by a supplemental and amended petition the partnership of C. I. and M. F. Humphries, and the individual partners thereof, were joined as parties defendant, and plaintiffs prayed for judgment, in solido, against all parties. After trial there was judgment in favor of defendants rejecting plaintiff’s demands, from which plaintiffs have appealed.

This action arises from an accidental fall sustained by the plaintiff wife, Mrs. Ernestine Hall, on the morning of February 13, 1954, on First Street in the Town of Jena, LaSalle Parish. On the date in question the plaintiff husband, accompanied by his wife, visited the Town of Jena for the purpose of transacting some personal business, and parked his truck parallel with, and about two or three feet from, the east curb of First Street in the Town of Jena. This position was in the space allotted to a sidewalk parking meter, established and maintained by the municipality. Mrs. Hall made her exit from the right side of the cab of the truck, moved forward to a point near the front of the vehicle, steadying herself with her left hand against the fender of the truck, and prepared to step up on the sidewalk, the surface of which was some twelve inches above the street, for the purpose of placing a coin in the parking meter. Observing a stream of water, some six to ten inches in width, flowing in the gutter of the street, Mrs. Hall raised her right foot to make the step across this small stream and onto the sidewalk. While in this position her left foot slipped or turned in such fashion that she was precipitated somewhat violently against the curb of the sidewalk, sustaining the alleged injuries to her side and back for which she seeks recovery.

Plaintiffs base their claims upon various asserted acts of negligence on the part of the several defendants, as will be hereinafter detailed.

First Street in the Town of Jena is a blacktop thoroughfare of the old style turtleback type of construction, effecting drainage from the crest of the street into the gutters on either side. The day of the accident was fair and there was no natural precipitation. However, it is established that business concerns adjacent to the street were accustomed to discharge drainage water into the street gutters by means of outlet pipes, which were run from their properties, under the sidewalk and into the street side of the gutter. The defendant, Humphries, operated a garage and service station located on First Street, a short distance up the slope of the street from the point of the accident. The wash and drainage water from this establishment was conducted into the street as above described, as was also the case of at least one other business concern, which operates a laundry in the immediate vicinity. At the time of the accident the Town of Jena had provided no sewerage facilities for this area, and as a consequence drainage was of a surface nature, which resulted in the flowage of water along the gutters of First Street at any time, independent of weather conditions.

Plaintiffs charged that the governing authorities of the Town of Jena were negligent in permitting a flow of greasy water along the street, particularly in close proximity to parking meters established by the city, requiring deposits by motorists availing themselves of street parking facilities* and that this general negligence created a particular hazard to motorists, who, it is alleged, were required to leave their cars and overcome the attendant dangers in negotiating passage up to the sidewalk for the purpose of making the required deposit in the parking meter. Plaintiffs contend the defendants, Humphries, were negligent in permitting greasy water to flow from their garage and wash racks into the street, thereby creating the dangerous condition which was allegedly the proximate cause of the accident.

In our opinion only one issue, involving purely a question of fact, is tendered by the instant case, namely, have plaintiffs established the cause of Mrs. Hall’s accidental fall and its occurrence by reason of the negligence of the parties defendant?

Plaintiffs urge that Mrs. Hall slipped on some greasy substance which had been carried from the Humphries garage by the flowage of what they termed greasy water along the street gutter. We think plaintiffs have signally failed to establish this fact by anything approaching the required degree of substantial and preponderating evidence. It is true that both plaintiffs testified as to the existence of a spot of grease or oil at the point where the accident occurred, but their testimony leaves much to be desired. Mrs. Hall testified that she was carefully observing her footing as she made her way to the front of the truck and prepared to step up to the sidewalk, and, though she did not at this time observe any oil or grease, she testified that after the accident, having been assisted back into the cab of the truck, she could look out the window and plainly see a “blob” of some oily or greasy substance which had been located by her husband as the cause of her unfortunate accident. The plaintiff husband testified that, after coming to his wife’s aid and assisting her into the truck, he made careful observation and found a spot of greasy scum at a point where Mrs. Hall’s left foot had slipped, leaving a mark, according to his testimony * * * like where a cow or horse skidded across the blacktop * *

Plaintiffs are the only witnesses who testified a9 to the existence of any oil or greasy scum of any nature, and a number of witnesses for defendants, who were exceedingly familiar with the locale by reason of their customary daily activities, testified that there was no deposit of any oil or grease resulting from'the flowage along the gutter.

Plaintiffs’ counsel insistently urge the presence of the grease or greasy scum allegedly carried from the Humphries garage into the street gutter and deposited on the street surface as a residue from the flowage of waste water from this establishment. This conclusion cannot be substantiated by the facts adduced, and must rest only upon the most tenuous threads of deductive reasoning, which are totally unacceptable.

A careful review of the record fails to convince us, first, that plaintiffs have satisfactorily established the presence of a greasy substance as the cause of the accident; and, second, conceding, arguendo, the existence of such evidence, they failed to establish that such deposit originated in the Humphries garage. In connection with this second point we think it pertinent to observe that the daily parking of motor vehicles on public streets not infrequently results in the deposit of oil and grease which might conceivably constitute hazards to unwary pedestrians.

In view of our finding that plaintiffs have failed to establish any negligence on the part of any of the defendants in connection with the accident, it is unnecessary to indulge in any detailed examination of the facts of the case with reference to the interposed defense of contributory negligence. However, we take occasion to note the fact that if Mrs. Hall was able to observe the deposit of oil or grease, located near the front of the family truck, from a seated position in the cab thereof, it is evident that it should have been readily perceptible if, as she contends, she was walking with care and making proper observation of the surface of the street, which fact, of itself, would abundantly serve to justify a finding of contributory negligence effectively barring recovery.

For the reasons assigned the judgment appealed from is affirmed.


author: AYRES, Judge. HARDY, Judge.

text:
    Mrs. Evel Mae MORGAN, Plaintiff-Appellant, v. Eugene W. FULLER, Defendant-Appellee.
    No. 8437.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 2, 1955.
    On Rehearing Feb. 2, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Frederick J. Stewart, Shreveport, for appellant.
    Richmond & Richmond, Shreveport, for appellee.
   AYRES, Judge.

In this suit by the divorced wife of the defendant, she prays for judgment for one-half of the balance of principal and interest at 6 percent per annum, plus 10 percent additional as attorney’s fees, on a $3,000 mortgage note assumed by the defendant, as her portion of the community estate formerly existing between them. In the alternative, she prays to be decreed the owner of an undivided one-half interest in the real estate mortgaged securing the aforesaid note. She further prays for general and equitable relief.

From a judgment dismissing her suit as of non-suit, plaintiff appealed to this court.

Plaintiff and defendant were married in 1945 and divorced July 15, 1953. During the existence of their marriage, certain real estate and personal property were acquired, which became assets of the community of acquets and gains then existing between them, which assets included a $3,000 mortgage note executed by Harvey E. Davis to defendant October 31, 1952, given in partial payment of the purchase price of a small tract of land situated in Caddo Parish, Louisiana, which on said date was sold’, by defendant to Davis.

Defendant claims that on the dissolution, of the community formerly existing between, him and his wife said estate was heavily burdened with debts, exceeding the value of the property thereof, and that, in effect,, plaintiff’s interest was residuary and dependent upon whatever remained after the-liquidation and settlement of the community debts. In his answer defendant lists and' enumerates purported obligations "of the-community, after the payment of which from the assets of the community, little,, if anything, would be left for partition between them. He alleged the community has not been liquidated or settled, and that in the event of such liquidation plaintiff would not be due anything from the estate. Upon this ground he bases an exception of no cause or right of action, which was referred to the merits of the case.

The record discloses, partially through admissions in defendant’s answer and his. admissions as a witness and by the testimony of plaintiff, all of which testimony was admitted without objection, that subsequent to the divorce between plaintiff and defendant they agreed upon a settlement of the community estate and, in accordance there with, the note was placed with a local bank for collection, with instructions to deposit one half of the monthly collections thereon, to plaintiff and the other half to defendant. This arrangement constituted a part of the settlement made in settling the estate as between them. Defendant ’admitted and recognized that his former wife was entitled to a half interest in the note. Davis made payments upon said note to about September 1, 1954, reducing the principal balance to $2,762.12. Upon that date defendant repurchased the property from Davis and,, as pa'rt of the consideration therefor, assumed the paytnent of the aforesaid mortgage no'te, hence the reason for Davis discontinuing payments. Defendant did not resume such payments or make payments, of his wife’s portion thereof. While defendant claimed the estate was insolvent,. there is evidence in the record that defendant obtained funds from the sale of portions of the assets and from the collection of a doss sustained under a fire insurance policy sufficient to pay the indebtedness.

However, so far as this action is concerned, whether the estate owed debts or not or whether defendant obtained and retained sufficient funds and assets to pay the obligations of the estate, is unimportant and immaterial. After the dissolution of the marriage, plaintiff and defendant made a settlement of the community estate and plaintiff was transferred one-half interest in the Davis mortgage note. This was in accordance with their settlement of the community estate between them. This was clearly established in the record by evidence introduced without objection. Accordingly, the pleadings were enlarged and the omissions therein were supplied.

Defendant, in subsequently acquiring the note and assuming its payment without the knowledge or consent of plaintiff, could not affect plaintiff’s right to one-half of the proceeds of said note. Moreover, defendant’s assumption of the payment of the note is inconsistent with any idea that the obligation had been extinguished by confusion. It, therefore, necessarily follows that plaintiff is entitled to recover judgment of defendant for one-half the balance due on the note, plus interest as therein stipulated, but not the attorney’s fees inasmuch as this is not an action on the note itself but upon an obligation arising in the settlement and liquidation of the community estate as between them.

Plaintiff’s petition, therefore, enlarged by the introduction of evidence without objection, as aforesaid, discloses a cause and right of action and the exception thereto is, therefore, overruled.

The judgment appealed is, therefore, annulled, avoided, reversed and set aside and there is now judgment in favor of the plaintiff, Mrs. Evel Mae Morgan, against the defendant, Eugene W. Fuller, for the full sum of $1,381.06, with 6 percent per annum interest thereon from September 1, 1954, until paid, and all costs of this suit.

Reversed and rendered.

On Rehearing.

HARDY, Judge.

This rehearing was granted for the purpose of further considering the urgent argument by counsel for plaintiff to the effect that the relief granted by our original judgment “was not sufficiently extensive to protect plaintiff’s rights.”

On rehearing counsel contended that plaintiff is entitled not only to the monetary judgment, allowed in our original opinion, but, further, to a recognition of her undivided one-half interest in the property which allegedly was owned by the community.

The facts are clear that the property which constituted a part of the community estate then existing was sold by defendant husband on October 31, 1952, some time prior to the decree of divorce which was granted July 15, 1953. Defendant husband re-acquired the property on September 1, 1954, which was more than a year subsequent to the decree of divorce.

Under the above facts we are at a loss to ascertain any legal basis upon which plaintiff would be entitled to a judgment recognizing her ownership of an interest in property acquired and disposed of during the existence of the community and reacquired, after its dissolution, by plaintiff’s divorced husband.

Since no other nature of relief is prayed by plaintiff, and since that sought, as we have above reasoned, cannot be granted, it follows that there is no ground for alteration of our original decree.

Inasmuch as both plaintiff and defendant applied for rehearings and a rehearing was granted without restriction, we have also considered the contentions urged by counsel for defendant opposing our original judgment in favor of plaintiff, but find therein nothing which would move us to any change as to our judgment.

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


author: McBRIDE, Judge.

text:
    John B. SMALLPAGE v. WAGNER & WAGNER et al.
    No. 20601.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    John E. Jackson, Baldwin J. Allen, New Orleans, for defendants-appellants.
    Donnaud & Buckley, New Orleans, for plaintiff-appellee.
   McBRIDE, Judge.

Wagner & Wagner, a commercial co-partnership (hereinafter termed “defendant”), operates the business of men’s tailor in the City of New Orleans. On or about July 28, 1954, plaintiff placed a verbal order with defendant for an oxford grey suit, and during August of 1954, probably on August 30, he placed a verbal order with defendant for a brown cashmere suit and a sport coat and slacks. The defendant agreed to make all of said garments for plaintiff for the agreed price of $664.35. The defendant contends that there was no specified time for delivery, but we are convinced that the understanding was that plaintiff was to get his clothes “in plenty of time for fall wear,” and we might say here that the word “fall” in the sense used in the testimony would be generally understood to include the months of September, October and November. On September 24, 1954, an agent of defendant called on plaintiff and secured from him a cash advance of $400 on the contract price, this agent making a representation that the clothing which plaintiff had ordered was “in work” and would be ready for a fitting in a few days.

The clothing was not made ready “for a fitting in a few days.” It was not until November 2 or 3 that a basted fitting was made which did not include the slacks. A basted fitting as we understand it from the testimony is made when the garments are only partially finished, such as the coat having no sleeves, lapel, etc. Plaintiff was informed by the agent of defendant who made the basted fitting that plaintiff could expect his clothes in a few days.

Both prior to the date the fitting was made a-nd also subsequent thereto plaintiff made many and periodic attempts to secure •delivery of his clothing but to no avail, and the record tends to show that the defendant was always able to find some excuse for putting off the plaintiff in his demands. Finally, plaintiff becoming weary and feeling that he had waited a sufficient time for the defendant to perform the contract to tailor the clothes, it then being the third and last month of the fall season, demanded the immediate delivery of the garments or the return of his money.

Defendant was formally placed in default by a telephone call and also by registered letter from plaintiff’s attorney on November 12, 1954, and was given until November 16, 1954, in which to make delivery of plaintiff’s order or to return the $400 payment. Upon defendant’s failure to do either plaintiff filed this suit on November 18, 1954. He seeks to recover from Wagner & Wagner and its component partners in solido the amount of the cash advance and also $300 for damages allegedly sustained by reason of defendant’s breach of the contract.

The defendants answered plaintiff’s suit and categorically denied the allegations of each and every paragraph thereof, but subsequently they filed a supplemental answer and reconventional demand, which, to say the least, is entirely inconsistent with the general denial made in the answer. In the supplemental answer and reconventional demand the defendants alleged that the clothing was ready for delivery on November 19, 1954, but that the plaintiff refused to accept it. Wagner & Waaner prayed for a judgment against plaintiff for $264.35, the alleged balance due on the contract. We may mention here that the allegation that plaintiff refused delivery of the clothing on November 19, 1954, is clearly not in keeping with the facts of the case. The truth is that the garments were never tendered to plaintiff.

After trial the lower court rendered judgment for plaintiff not only for the $400 advanced to defendant, but also for $100 for plaintiff’s attorney’s fees. The recon-ventional demand was dismissed. Defendants have appealed from the judgment and in an answer to the appeal the plaintiff prays that the judgment in his favor be increased to the sum of $700.

It is a well-known fact that the well-dressed male wears clothing of different weights and styles during the various seasons of the year, and we believe the condition of the contract calling for delivery of the garments in time for fall wear was of the essence of the contract, for if the garments were not seasonably delivered, they would not serve the purpose for which plaintiff had purchased them. We can say, without going into a long recital of the evidence, that it abundantly appears that defendant made only a half-hearted attempt to fill plaintiff’s order and this probably because of the fact that defendant was under financial stress and strain. For instance, the $400 advance was secured from plaintiff on the misrepresentation by defendant’s agent that the clothing was “in work” and would be ready for a fitting in a few days. On cross-examination defendant’s agent was forced to admit that at that time the material for the oxford grey suit was en route back to the New York suppliers, Milbank, Leaman & Company, delivery having been refused by defendant, and we gather this was because defendant was unable to meet the collect charges on the shipment. The brown cashmere suiting had not been received by defendant and the material for the sport coat had not even been ordered. Surely plaintiff was well within his rights in placing defendant in default at the time he did.

The defendants make the contention that whereas there is no prayer for the annulment of the contract, there can be no restoration of the amount plaintiff paid on account. Defendants, as authority, cite the case of Bossier’s Heirs v. Jackson, 114 La. 707, 38 So. 525, but a reading thereof shows that it is entirely inappropriate to the legal question raised. We are also cited to Hart v. Adler, 19 La.Ann. 301, the syllabus of which reads, thus:

“The Court will not give judgment for the return of the price paid for goods, on account of the nondelivery by defendant, until plaintiff seeks to annul the contract for non-compliance by the defendant with its provisions.”

Our careful analysis of Hart v. Adler, supra, discloses that all the Court held was that the plaintiff who sought to annul the contract for non-compliance on the part of defendant must first place the defendant in default before the purchase price could be restored to him.

In the instant case the defendant was placed in mora and was given until November 16, 1954, to make delivery of plaintiff’s order or to return his money, but without avail, and we know of no rule of law which would prevent the plaintiff in these circumstances from recovering, in a suit such as this, the amount he has advanced to defendant on the contract which defendant breached. The contract terminated upon plaintiff’s making the formal default and we do not think that he must pray for a technical rescission.

According to Article 2046, LSA-C.C., a resolutory condition is implied in all commutative contracts.

Article 2045, LSA-C.C., provides:

“The dissolving condition is that which, when accomplished, operates the revocation of the obligation, placing matters in the same state as though the obligation had not existed.
“It does not suspend the execution of the obligation; it only obliges the creditor to restore what he has received, in case the event provided for in the condition takes place.”

The defendants complain bitterly of that part of the judgment assessing against them the sum of $100 representing plaintiff’s attorney’s fees. Their argument is that whereas the record is devoid of testimony either proving that Wagner & Wagner was in bad faith or had attempted to defraud plaintiff of anything, the item of attorney’s fees is not assessable as damages.

LSA-C.C. art. 1930 dealing with the payment of damages due by the party who violates the obligations of a contract recites :

“The obligations of contract (contracts) extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”

Article 1934, LSA-C.C., contains the following provisions:

“Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications :
******
2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.”

Givens v. Chandler, La.App., 143 So. 79, 81, was a suit for the breach of a contract for the transmission of water to plaintiffs’ adjacent property and it was shown that defendant broke the pipe and threw it over the fence into plaintiffs’ lot without justification whatsoever. The court said:

“Here, there was a clear violation of the contract, in bad faith from a motive of ‘interest or ill will,’ and the act complained of was certainly ‘tainted by fraud or malice,’ which entitles plaintiffs to attorney’s fees under Eatman v. New Orleans Pac. Ry. Co., 35 La.Ann. 1018, and C.C. art. 1934.”

In Raney v. Gillen, La.App., 31 So.2d 495, 498, a purchaser wrongfully repudiated his agreement reserving certain fixtures to his vendor, who was forced to institute suit for reformation of the deed. The sum of $100 was allowed to the vendor, as a proper element of damages under LSA-C.C. arts. 1930 and 1934, for the services rendered by his attorney. The court had this to say:

“Under our interpretation of the codal articles referred to, supported by the authority cited, we think that attorney’s fees in the instant case are a proper element of damages which should be assessed against the defendant who breached his contract with plaintiff, obviously influenced by motives of self interest.”

We unhesitatingly find that Wagner & Wagner throughout the transaction acted in bad faith. We have already mentioned the incident of defendant having secured the $400 cash advance on the representation that plaintiff’s clothing was “in work.” Further, we know of no more personal contract than one entered into by a person with his tailor, yet it was brought out that defendant forwarded the materials to be used in making plaintiff’s clothes to a firm of tailors in Chicago there to be cut and finished. See LSA-C.C. art. 2007. Defendant succeeded in concealing this fact from plaintiff until the trial.

Defendant was guilty of showing a complete lack of good faith and it seems there was a pattern of attempts to evade and conceal, of contradictions, inconsistencies, and of admissions grudgingly made from the witness stand.

We believe that under the facts of the case and the law plaintiff is entitled to a refund of the $400 plus the attorney’s fee in the sum of $100 as an item of damages for breach of contract. The amount of the fee is equal to twenty-five per cent of the judgment which appears to us to be fair. We do not see fit to increase the amount.

The plaintiff also demands $150 for loss of time from his business, annoyance, inconvenience and aggravation, but he has not proven this item to our satisfaction and the claim is not to be allowed.

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

Affirmed.


text:
    Felix Edwin BORDELON, Plaintiff-Appellant, v. Edna BROWN, et al., Defendant-Appellee.
    No. 8398.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Earl Edwards, Marksville, for appellant.
    Maxwell J. Bordelon, Marksville, for ap-pellee.
   GLADNEY, Judge.

This action was instituted by Felix Edwin Bordelon on January 26, 1955, to be decreed the lawful owner of and entitled to the possession of a joint savings account deposit created by plaintiff and Edna Brown in the Moreauville State Bank. Made defendant besides Edna Brown was the bank which answered by admitting the deposit and paying into the registry of the court the sum of $1,000 plus accrued interest of $12.50, or a total of $1,012.50, under authority of the concursus statute, LSA-R.S., 13:4811 et seq. With the payment of said amount, the defendant bank was relieved of further responsibility and is no longer an active litigant in the case.

Edna Brown filed an answer in which she set forth the circumstances which brought about the joint deposit and asserted that as a consequence of the death of Felix Edwin Bordelon she was entitled to be decreed the owner and receive possession of the money in the bank under the contract which existed between her and Felix Edwin Bordelon.

Shortly after filing the suit plaintiff died intestate and his children have been substituted as plaintiffs.

After trial on the merits, judgment was rendered in favor of Edna Brown and plaintiffs have appealed.

The salient facts as related by Edna Brown are not seriously disputed. The transaction which gives rise to this litigation arose from a business relationship between Felix Edwin Bordelon and Edna Brown during November of 1952, at which time Edna Brown was engaged-as a housekeeper and care-taker in the home of Bordelon, an elderly invalid. Her duties required her to also take care of two other invalid adults. As remuneration for these sexwices Edna Brown received a salary of $60 per month until November 17, 1953, when the salary was reduced to $40 per month and at that time the aforementioned sum of $1,000 was deposited in the bank. The employment continued on the reduced monthly salary until December of 1954, at which time Edna Brown became ill and her sickness required hospitalization which temporarily prevented her from performing her customary duties at the Bordelon home. There is no evidence to indicate that prior to the institution of this suit that either Bordelon or Mrs. Brown intended to dissolve the business relationship. The existence of the deposit was evidenced by a bank book, the possession of which, according to the terms of the deposit, was necessary to accomplish withdrawal thereof. The deposit was made subject to the following endorsement which was written in the bank book by the hand of Louis B. Coco, assistant cashier of the bank, upon the joint direction of Felix Edwin Bordelon and Edna Brown:

“Must be signed by both parties. In case of death survival has complete amount.”

In the assigned reasons for judgment the District Judge concluded that Edna Brown was entitled to the deposit on either of two grounds: (1) that the deposit constituted a remunerative donation and as such was not subject to formalities otherwise required of donations inter vivos; and (2) that Edna Brown had a proprietary interest in the deposit by reason of the agreement with Bordelon that the reduction of her salary would be supplemented by the deposit jointly executed by them on November 17, 1953, should Bordelon die first.

Appellant contends the District Court erred in not applying the principles pronounced in Vercher v. Roy, 1930, 171 La. 524, 131 So. 658, and Northcott v. Livingood, La.App.1942, 10 So.2d 401, in which decisions it was held that an attempted donation inter vivos of a credit in a hank could only be legally recognized when evidenced by an act passed before the notary and two witnesses as prescribed by the LSA-Civil Code Article 1536. It is argued further that since such formality was not complied with the attempted gift of the deposit never became perfect and consequently Edna Brown has no right thereto. On the other hand, appellees earnestly assert the transaction creating the deposit was in the nature of a remunerative donation, and, therefore, not subject to the rules peculiar to donations inter vivos.

Any transaction which involves the gratuitous acquisition or disposition of property must be made in the forms established by the provisions of the LSA-Civil Code relating to donation inter vivos, and mortis causa. A donation inter vivos is therein defined as an act by which the donor divests himself presently and irrevocably of the thing given in favor of the donee who accepts it. The donation mortis causa is an act by which a donor disposes of property designed to take effect when he shall no longer exist and which is revocable. LSA-Civil Code arts. 1467, 1468 and 1469. It is clear from the tenor of the notation in the bank book upon which Edna Brown’s rights depend, that the said agreement cannot be classified as a donation mortis causa for it complies with none of the formalities required for the validity of a testament.

We will, therefore, more particularly inquire as to whether Edna Brown’s rights are dependent upon formalities required with respect to certain donations inter vivos. The following LSA-Civil Code articles are pertinent to the inquiry:

No. 1523:
“There are three kinds of donations inter vivos:
“The donation purely gratuitous, or that which is made without condition and merely from liberality;
“The onerous donation, or that which is burdened with charges imposed on the donee;
“The remunerative donation, or that the object of which is to recompense for services rendered.”
No. 1525:
“The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift.”
No. 1526:
“In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”
No. 1536:
“An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”
No. 1538:
“A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.
“Such an act ought to contain a detailed estimate of the effects given.”
No. 1539:
“The manual gift; that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

The Code declares by way of definition that corporeal things are such as are made manifest to the senses, which we may touch or take, which have a body, whether animate or inanimate, and incorporeal things are such as are not manifest to the senses, and which are conceived only by the understanding. Things are also classified as being.movable by the disposition of law such as obligations and actions. All things corporeal and incorporeal, other than those which have the character of immovable by nature or disposition of the law, are considered as movables. LSA-Civil Code articles 460, 474 and 475. The transferring- of movable effects into the power and possession of another takes place either by their real tradition as to corporeal things or by the delivery of the title and the act of transfer in the tradition of incorporeal rights. LSA-Civil Code articles 2478, 2481.

The agreement entered into between Bordelon and Mrs. Brown indicates quite plainly, we think, the intent on the part of both parties that upon the death of the one, the deposit should belong to and possession thereof belong to the survivor. Yet, since there was no delivery actually of the cash, the possession of the right to withdraw the deposit was the exclusive right of neither party. The evidence indicates that Bordelon actually delivered to Mrs. Brown the bank book and she retained it in her possession until the trial of this case. While it can be said to be true that the bank book was a corporeal thing and therefore, a transfer of the book constituted a manual donation in accordance with the provisions of Article 1539, the mere possession of the book by Mrs. Brown did not transfer the obligation which it represented. The obligation constituted an incorporeal thing which could only be validly transferred in accordance with the provisions of Article 1536. An exception to said codal article must be recognized, however, if the transaction should be determined to be a remunerative donation and therefore, not subject to the conditions imposed by LSA-Civil Code Article 1536.

In support of appellees’ contention that defendant is entitled to receive the deposit as remuneration for her services and, therefore, beyond the purview of the provisions of LSA-Civil Code Article 1536, counsel points out that as a consideration for the creation of the deposit, Edna Brown agreed the amount of her remuneration would be and actually was reduced by $20 per month. This argument is supported by undisputed evidence but the record does not show plaintiff's services at any time merited a greater remuneration than $60 per month. As a consequence it is evident the loss by defendant because of the reduction was approximately $280 calculated at $20 per month for the period from November 17, 1953, until the death of plaintiff in January, 1955. We must conclude, therefore, that any unremunerated services by the defendant did not equal or exceed one-half of the amount on deposit, and accordingly, under LSA-Civil Code Article 1526 it has not been established the subject transaction may be classified as a remunerative donation. See Almond v. Adams, 1952, 221 La. 234, 59 So.2d 132.

Appellant has cited two decisions which, in our opinion, are apposite under the facts as resolved herein. In Vercher v. Roy, supra, there was involved a certificate of time deposit under which Mrs. Roy, the defendant, claimed entitlement to the deposit but was opposed by the administrator of the succession. The court held that the attempted transfer was invalid for failure to conform to the provisions of Article 1536 of the LSA-Civil Code, the court saying [171 La. 524, 131 So. 660]:

“The fact that the certificate was made payable to the depositor, and, in the event of his death, to Mrs. Roy, does not entitle the latter to the certificate or its proceeds, on the happening of that event. To hold otherwise would be to give to the clause in favor of Mrs. Roy the effect of a donation mortis causa, when such donations can be made only by last will and testament. Civil Code, arts. 1750 and 1469; Barriere v. Gladding’s Curator, 17 La. 144. On the other hand, if the clause be viewed as an attempt to pay, after the death of the deceased, any obligation due Mrs. Roy, it is ineffective, for such obligation, at that time, must be established contradictorily with the succession, and paid, if it exists, by the succession.”

In Northcott v. Livingood, supra, the court gave consideration, inter alia, to whether or not the defendant had a proprietary interest in a joint account and denied her claims in that respect. In the instant suit the evidence shows conclusively that Mrs. Brown made no deposit whatsoever in the joint account and, therefore, is without right to claim a proprietary interest therein. In the Northcott case [10 So.2d 405], the court said:

“It is almost equally as clear that defendant has no right to any of said deposits under title of gift or donation inter vivos, because it is indispensable to the transfer of title to a credit by gift or donation that the instrument intending to accomplish such result be in notarial form. Civil Code, Article 1536. A credit in bank is not a corporeal movable and for this reason its transfer to another may not be effected by manual gift. Civil Code, Article 1539.”

We consider the foregoing authorities sufficient to show that the attempted transfer of the deposit by Bordelon was entirely without validity since in order to clearly establish such a donation wherein delivery of possession was to take place upon his death, neither the essential requirements to perfect a donation inter vivos nor mortis causa have been met. In fact, the transaction never culminated into an actual donation because there was no tradition of delivery.

The conclusion which we have herein reached requires that the judgment from which appealed should be reversed and set aside and rendered in favor of plaintiff. We think, however, that any rights which Edna Brown may have for the recovery of compensation for her services against plaintiff should not be prejudiced by this decision, and accordingly, in our decree such rights will be reserved. It is ordered that there be judgment in favor of plaintiffs: Lee Felix Bordelon, Jules P. Bordelon, Daniel Bordelon, Verdie Bordelon, Mrs. Edw. Poret, Jr., Anna Bordelon, and Felix Edwin Bordelon, Jr., and against Edna Brown, and the Moreau-ville State Bank, decreeing plaintiffs to be the true and lawful owners of the sum of $1,012.50, as deposited in the registry of the Court, and that G. H. Couvillion, clerk of the said Twelfth Judicial District Court, Parish of Avoyelles, State of Louisiana, be and he is hereby authorized to deliver the said amount to plaintiffs, subject to the provisions of LSA-R.S. 13:4816, relating to the disbursement of costs.

It is further ordered that any rights which Edna Brown may have to claim remuneration for services rendered Felix Edwin Bordelon, deceased, be and the same are hereby reserved.

All costs, including costs of this appeal, should be taxed upon Edna Brown.


text:
    Sam P. LACHNEY, Plaintiff-Appellee, v. Ethel CHANCE, Defendant-Appellant.
    No. 8440.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.

      Horace G. Pepper, Baton Rouge, for appellant.
    Eugene G. Scallan, Marksville, for ap-pellee.
   AYRES, Judge.

The plaintiff was an applicant for assistance under LSA-R.S. 46:51 et seq., providing for public welfare assistance. The defendant is the Director of the Avoy-elles Parish Department of Public Welfare.

The defendant has appealed from a judgment ordering and directing her as such director to make plaintiff’s file accessible to his attorney and particularly the medical reports contained therein for the purpose of determining plaintiff’s eligibility in obtaining welfare assistance and for aiding him with'his application.

The appellee has by motion prayed for the dismissal of -the appeal for the reason that subsequent to this appeal the Department of Public Welfare determined that he was eligible for and granted him assistance, and there no longer exists any necessity for review of his file or of the documents sought to be examined. In effect, it is now contended the issues have become moot.

The ultimate result sought in this proceeding has been accomplished. Plaintiff has been certified as eligible for welfare assistance, has been placed on the welfare rolls, and is now receiving assistance. It is, therefore, evidence that no further need exists for a determination of the issues presented to this action or that any useful purpose would be served thereby. The questions raised are now moot.

It is the well settled jurisprudence of this State that the courts will not decide moot questions. General Motors Truck Co. of Louisiana, Inc., v. Caddo Transfer & Warehouse Co., Inc., 175 La. 892, 144 So. 608; State v. Hayes, 199 La. 269, 5 So.2d 768; Pellegrin v. City of Gretna, 222 La. 527, 62 So.2d 824; Hirt v. City of New Orleans, 225 La. 589, 73 So.2d 471; Jefferson 7th Ward Social Club v. Grevemberg, 225 La. 607, 73 So.2d 777; State ex rel. Jackson v. Madden, 225 La. 786, 74 So.2d 29.

It is, however, contended by the appellant that, in the event this court holds that the issues have become moot, an order should be issued avoiding the judgment appealed as otherwise the judgment would remain in effect indefinitely. We do not so construe the effect of the judgment. Its purpose has been completely accomplished. The only questions properly presented became moot when appellee’s eligibility for assistance was certified and he was placed upon the welfare rolls to receive assistance. It is sufficient that these or similar issues may be determined if and whenever they are properly presented in an actual controversy.

For the reasons assigned, it is • ordered, adjudged and decreed that the appeal taken herein be, and, it is hereby dismissed.

Appeal dismissed.


author: McBride, judge.

text:
    Florence ROUCHON v. Mrs. A. ROCAMORA.
    No. 20680.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    John T. Charbonnet, New Orleans, for defendant and appellant.
    George O’Dowd, New Orleans, for plaintiff and appellee.
   McBride, judge.

The defendant, Mrs. A. Rocamora, verbally leased from plaintiff, through plaintiff’s agent, on a month-to-month basis a certain dwelling in which she and her husband lived. She did not disclose to the agent whether she had a husband nor did the agent see fit to ask her about her marital status. Plaintiff now sues Mrs. Rocamora for alleged overdue and unpaid rentals and the defendant has filed a general denial.

It was only during the course of the trial that it developed that defendant had a husband with whom she lived under the regime of the community of acquets and gains. Notwithstanding this, the trial judge found for plaintiff and Mrs. Rocamora has appealed from the judgment. She has filed an exception of no cause or right of action in this court.

The exception must be maintained. Ward v. Trimble, La.App., 20 So.2d 765. The contract for housing was a contract for necessities for which the husband is liable as head and master of the community. LSA-C.C. arts. 120, 2403, 2404. It makes no difference that the lease contract was made by the wife in her own name.

By the provisions of LSA-R.S. 9:101 a married woman is permitted to contract obligations on behalf of the community and to bind herself personally therefor, but in order to hold the married woman individually liable for the community debt the proof must be clear and convincing that it was her intention and purpose to bind her estate or herself personally. United Life & Accident Ins. Co. v. Haley, 178 La. 63, 150 So. 833; D. H. Holmes Co. v. Van Ryper, La.App., 173 So. 584; Alpha v. Aucoin, La.App., 167 So. 835; Wilson & Gandy, Inc., v. Cummings, La.App., 150 So. 436.

The plaintiff did not show that it was the agreement that Mrs. Rocamora was-to be personally bound on the lease contract, and we know of no principle of law under which she can be held liable for any rent that may have accrued or is due. She was no more or less than the agent of the community in contracting the indebtedness. Thus the community of acquets and gains being the debtor, the husband as its head and master must be made the defendant. Ward v. Trimble, supra; Reneau v. Brown, 9 La.App. 375, 158 So. 406; Wilson & Gandy, Inc., v. Cummings, supra; United States Fidelity & Guaranty Co. v. Moore, 9 La.App. 429, 119 So. 886.

The case which plaintiff cites, Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556, has no application.

For the reasons assigned, the judgment appealed from is avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at her cost in both courts.

Reversed.