author: FOURNET, Chief Justice. McCALEB, Justice

text:
    229 La. 83
    The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. John Charles AURIANNE.
    No. 42490.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    James David McNeill, George M. Ppn-der, New Orleans, for appellant.
    Oliver S. Delery, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The plaintiff, The Board of Levee Commissioners of the Orleans Levee District, alleging that it had not been able to agree with the defendant, John Charles Aurianne, on the pricé to be paid him for certain property appropriated by it in 1930 in connection. with the development of the lakefront area bordering Lake Pontchartrain, instituted suit to be adjudged the owner of said property, praying that the court fix a price or valuation thereon “in accordance with the provisions of Article 16 of the Constitution;” and from that portion of the district court’s judgment fixing the price on the basis of present day value, instead of “the actual cash value of the property before the contemplated improvement was proposed and begun; * * * ” as stipulated in the Constitution, and decreeing that such amount, $4,500, be paid as compensation, the plaintiff has appealed.

The property concerned, being lot No. 10 in Square 5286, bounded by Frankfort Street, Elysian Fields Avenue, Marigny Street and Columbia Street, in Milneburg (New Orleans), is within the area where the plaintiff Board in its development of the lakefront is authorized to acquire property by- various means, including appropriation. A . hpuse' standing on the lot has been occupied by the defendant since 1918, when-.he acquired the property; the land was:then on the lake side of a levee which formerly paralleled the shore line, affording protection to the city of New Orleans from the waters of Lake Pontchartrain. When the lakeshore development was undertaken, the said levee was used as a portion of a boundary line first officially adopted by the plaintiff in a Resolution of October 21, 1925, as the inland boundary of the project — the same inland, or south shore, boundary being later incorporated in a constitutional amendment (1928) authorizing the plaintiff Board to acquire private property north of said line for inclusion in the development, and again repeated in a Resolution of the plaintiff’s Executive Committee, approved by the plaintiff Board on October 21, 1930, which Resolution provided that “ * * * all property in said area, between said south boundary line and Lake Pontchartrain on the.north side, not heretofore appropriated and taken possession of, shall be appropriated and taken possession of by this Board, and that any owners of private property thereon shall be paid the market value of said property at the time of its appropriation by this Board out of the taxes to be levied in the City-of New Orleans in accordance with law; the map which is attached to the report of the Chief Engineer is recommended to be made a part of this ordinance.. * * * ” The said Resolution was duly recorded in the Conveyance Office of the Parish of Orleans and public notice thereof appeared in the press.

By the constitutional amendment of 1928, the total lakefront area was divided into five zones “for the purpose of construction and administration”, each to extend between the boundaries indicated; and following the description of the respective zones was the limitation that “except as to fill and flood and wave protection said zones shall be completed one at a time, so that one zone shall be finished before another-is begun * * *.” Meanwhile, beginning in 1925, the work of dredging the lake and filling the area between the inland boundary and the breakwater (later replaced by a sea wall) was begun. No fill was pumped onto the property of the defendant, none being necessary. The land lies in the area designated as Zone 4, and in the process of early development a retention levee was built along the shore line, some 600 feet distant from defendant’s property, to keep the section free of the water and slush caused by dredging" operations. Following completion of work in three of the zones, the development of Zone No. 4 was undertaken. Negotiations as to the value of the property between the plaintiff and defendant, extending over the past several years, having failed, the present suit was instituted on November 17, 1954, resulting in the judgment from which this appeal was prosecuted.

The plaintiff Board contends that the appropriation- was effected in 1930, upon rec-ordation of its Resolution of October 21, 1930, and upon notice being given in the public press; and in the alternative, even if we should hold that the -appropriation was not effected until filing of suit, still the compensation to be paid cannot, according to the express provisions of Article 16, § 7(e) of the Constitution, exceed the actual cash value of the property before the lakefront improvement was begun.

It is the contention of the defendant, on the other hand — and in this he was in effect sustained by the trial judge — that there was no appropriation until the filing of the present suit, and therefore the value of the property at the time of such taking is controlling. Counsel further argues in brief that this property was not needed for levee protection purposes or for any other public use, and is now wanted only so that it may be sold to another individual for his private use.

A study and analysis of Article 16, § 7 of the Louisiana Constitution of 1921, LSA, dealing with the powers and duties of the plaintiff Board — and especially the 1928 amendment of that section when the .text was completely rewritten, boundaries of the lakefront project were defined, the Board’s jurisdiction was made exclusive, its powers were broadened, and the list of authorized works was appreciably expanded — reveals that the lawmakers intended the development of the lakefront to be one project, to be effected and completed in an orderly way over a period of time; that there was to be one appropriation and one scheme of payment, all fixed in the Constitution, so that private property owners would be uniformly compensated for their lands. Besides the zoning of the project as a whole, breakwaters and water basins were added tó the list of works.to be located and constructed; the dedication of areas as parks, playgrounds and beaches was contemplated in furtherance of an overall design; the work of reclamation, construction' and improvement was to be accomplished 'by letting out contracts therefor from time to time, “in accordance with law at the time of the letting of said contracts”; and in order to forestall demand of a higher price for later developed property, as well, as to insure uniformity of compensation throughout the-area; there was included the express provision that “ * * * the compensation to be paid [for property expropriated or appropriated] shall be the actual cash value of the property before the contemplated improvement was proposed and begun; * * '*.» (Emphasis supplied.)

The plaintiff in its Resolution approved on October 21, 1930, declared that all private property in the described area which had not previously been appropriated was then appropriated,' and gave public notice of such action in the press; that the Work in Zone 4 (other than bulkheading and filling) was not ■ undertaken for many years was due to the constitutional -requirement that work in one zone had .to be completed —interpreted by this Court to mean fit for occupancy, .and salable — before that...in another is begun,- and cannot profit the-,defendant in th.e award.of compensation.., .

There is the testimony of only one witness as to the value of the lot and improvements in 1930; the evidence on that score is too meager, and is not satisfactory, so the case will be remanded for. additional proof.

For the reasons assigned; the jiidgment of the lower court is set aside,-and it.is now adjudged that the Board of .Levee Commissioners of the Orleans. Levee District be decreed to be the owner of: A certain lot of ground and improvements thereon, in the Third District, of the City of New Orleans, at Milneburg, in square bounded by Frankfort Street, Elysian Fields ' Avenue, Marigny Street and Columbia Street, designated as Lot No. 10, which said Lot No. 10 measures 28 feet and 2 inches front on Frankfort Street by ¡-150 feet in depth French Measure. It is further ordered, adjudged and decreed that the case be remanded to the lower court to receive evidence and fix the valuation of the above described property as of the date of its appropriation by the plaintiff, that is, October 21, 1930, and to render judgment 'accordingly, all in conformity with Article 16, § 7 of the Louisiana Constitution of 1921, as. amended, LSÁ.

McCALEB, Justice

(concurring).

While I entertain doubt that tire passage and registration' of the resolution 'of plaintiff’s Executive Committee, which was approved by plaintiff on October '21, 1930; effected an appropriation of defendant’s property since there has never been an actual entry- on his land, it makes no material difference in the result of this case as defendant’s compensation can be'no greater than the value of his property in 1930 or, more accurately, the time when the Board proposed and ■ began the lakeshore improvement project. Hence, if, as I believe, the trial judge was correct in regarding this to be an expropriation proceeding, defendant is not entitled to be paid the market value of his land as of the date of the institution of the suit in view of the plain provisions of Section 7(e) of Article 16 of the Constitution that:

“In the event of expropriation or appropriation the compensation to be paid shall be the actual cash value of the property before the contemplated improvement was proposed and begun; * * (Italics mine.)

For this reason, I respectfully concur.

      . Art. 16, § 7(e), La.Oonst. of 1921, as amended, LSA.

      . Ibid.

      . La.Const. of 1921, Art. 16, § 7(b), as added byT928 amendment, LSA.

      . Act 292 of 1928, adopted as a constitu-. tional amendment to Article, 16, § 7 of the La.Const, of 1921 in November, 1928.

      . Section 7 (a) of Art. 16.

      . Section 7(c) of Art. 16.

      . Section 7(g) of Art. 16.

      . Section 7(e) of Art. 16.

      . Welsh v. Board of Levee Com’rs of Orleans Levee Dist., 168 La. 1037, 123 So. 705.

      . The general rule is that the taking is not complete until the grantee of the power of eminent domain enters the land. 29 C.J.S., Eminent Domain, § 135, and cases cited in support of the text; Marion & R. V. R. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 70 L.Ed. 585 and United States v. Dickinson (United States v. Withrow), 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789.


source: Caselaw Access Project

author: FOURNET, Chief Justice. McCALEB, J.,

license: Public Domain

text:
    229 La. 92
    The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. Henry AURIANNE et al.
    No. 42496.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    James David .McNeill, George M. Ponder, New Orleans, for appellant.
    Oliver S. Delery, New Orleans, for ap-pellees.
   FOURNET, Chief Justice.

The issues presented for our determination in this case are identical with those raised in Board of Levee Commissioners of the Orleans Levee Dist. v. Aurianne, with which it was consolidated for trial, and the decision in that case is, therefore, controlling here.

For the reasons assigned in Board of Levee Commissioners of Orleans Levee Dist. v. Aurianne, La.Sup., 85 So.2d 39, the judgment appealed from is set aside, and it is now adjudged that The Board of Levee Commissioners of the Orleans Levee District be decreed to be the owner of: A certain lot of ground and ■ improvements thereon, in the Third District in the City of New Orleans, at Milneburg, in square bounded by Frankfort Street, Elysian Fields Avenue, Marigny Street and Columbia Street, designated as one-half of Lot 11 or Lot G, which said Lot G measures 33.9 feet front on Elysian Fields Avenue by a depth of 127.9 feet. It is further ordered, adjudged and decreed that the case be remanded to the lower court to receive evidence and fix the valuation of the above described property as of the date of its appropriation by the plaintiff, that is, .October 21, 1930, and to render judgment accordingly, all in conformity with Article 16, § 7 of the Louisiana Constitution of 1921, as amended, LSA.

McCALEB, J.,

concurs for the reasons given by him in Board of Levee Commissioners of the Orleans Levee Dist. v. Aurianne, 229 La. 83, 85 So.2d 39.

       229 La. 83.


author: HAMITER, Justice.

text:
    229 La. 94
    Ovide J. CHAUVIN v. Leonard LA HITTE, d/b/a L & L Auto Sales.
    No. 42172.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Charles E. Cabibi, New Orleans, for defendant-appellant.
    Anthony R. Occhipinti, Lawrence Hen-nessey, Jr., William J. Lopez, John P. Dowling, New Orleans, for plaintiff-ap-pellee.
   HAMITER, Justice.

Leonard LaHitte, who conducts a business in the City of New Orleans under the name of L & L Auto Sales and is the defendant herein, prosecutes this appeal from a judgment -that rescinded his sale to plaintiff, Ovide J. Chauvin, of a 1953 Studebaker automobile, condemned him to refund the paid purchase price of $2,850, and awarded plaintiff attorney’s fees in the additional sum of $400.

As is'shown by his assigned written reasons the district judge found! as a fact that the defendant, in making the sale to plaintiff, fraudulently represented the autqmobile as being- “brand new” when it was in truth a used car to his knowledge.

The evidence contained in the record',which we have carefully studied and weighed, convincingly supports the mentioned'’finding.' Contradictory of" the sworn assertions of the defendant, which are that he never held himself out to the public-as a new car dealer and that in making the sale in question on September 8, 1953 he -merely represented the Studebaker automobile to be “practically new” and as. having been owned by his father in law, is the testimony -of plaintiff, his wife, his daughter, and his son in law, all of whom were present when the negotiations were conducted. They testified that at such time plaintiff, who was desirous of acquiring a new vehicle and was contracting to pay the regular “new car” list price, re-' ceived assurance from the defendant that the automobile being purchased was “brand new” and that a service policy, which usually accompanies such a purchase, would be mailed to him immediately; but that some weeks later he learned that his acquisition was' of a “used” machine, it having been sold to another on March 21, 1953 (almost six months prior to his purchase) by a Studebaker dealer in Memphis, Tennessee.

Moreover, the testimony of plaintiff and his witnesses, as to the intentional misrepresentation perpetrated by the defendant, is corroborated by these proven circumstances’:

(a) The'business cards circulated by defendant 'contained the words “New and Used Cars”. This contradicts his assertion 'that he did not hold himself out to the public as a “new” car dealer.

(b) He maintained a sign at- his premises reading: “Like New and Used Cars”. The word “Like” was exceedingly small in proportion to the other words and, hence, indicated the existence of an intent to mislead.

(c) ’ The total' consideration for the sale of the second hand vehicle to plaintiff approximately equaled the regular list price for a new one of the same make, model and type.

(d) The application for a certificate of title that was prepared by defendant, or under his direction, listed the car as being new.

(e) A photostatic copy of the bill of sale that accompanied such application shows the defendant’s signature in connection with and as approving the statement: “This car is new and has never been licensed or titled in this or any other State.”

(f) The service policy was not mailed as promised. Plaintiff’s wife secured it only after visiting defendant’s premises some eleven days following the purchase and by making demand therefor. But even then it was valueless, and Studebaker service stations later refused to.honor it, because the provisions thereof provided service for a maximum period of ninety days after delivery to the original purchaser and the car had been delivered originally on “3-21-53” to Joseph Bruno (the purchaser named in the policy) by a Memphis, Tennessee, dealer. Too, before plaintiff received the service contract the delivery date originally shown thereon had been changed to read “9-21-53”.

Also, we agree with the trial Court that inapplicable to this cause is the doctrine, recognized in.our jurisprudence and invoked by this defendant, that a suit to rescind a sale must fail when the purchaser has used the property to such an extent tnat it cannot be returned to the seller in substantially the same condition as when' sold.

It appears that plaintiff and his wife did not suspect any irregularity in the sale until September 19, 1953 (eleven days after its consummation) when they obtained the service policy and noticed therein that a prior purchaser was one Joseph Bruno. Even then, however, they were assured by defendant (or his- representative) that such person was his father in law in whose name he always acquired new cars from the manufacturer. About this time also the purchased automobile became difficult to start and it was taken to a repair place suggested by defendant. Some days thereafter, while the starting difficulty was continuing, plaintiff’s wife visited a regular Studebaker service station and tendered the policy; but the honoring of it was refused.

Approximately a month after.: the sale (on or about October 8, 1953), when de-: fendant telephoned to plaintiff’s wife requesting payment of $100 then due under the purchase arrangement, the latter told him of the continuing trouble being experienced with the automobile and further stated: “I will trade you back. I would like my car back and you can take yours.” Without agreeing to her proposal, he replied that he was also having trouble with the Nash car which had been accepted on the purchase price.

Finally, on November 19, 1953,. plaintiff’s attorney addressed a letter to defendant demanding, in effect, a rescission- of the sale and a return of the consideration1 given therefor. The demand was ignored,’ and this suit followed fifteen days later.

Under the above circumstances it cannot be correctly said that plaintiff delayed unreasonably, in attempting to obtain a settlement of his claim, to the extent of effecting a bar of this suit.

But in our opinion there is; error in that part of the judgment'which awards to plaintiff attorney’s fees of $400. On numerous occasions this court has said that ordinarily attorney’s fees are not assessable as an item of damages unless provided for by law or by contract. .The clear import of the language of the opinions is that no award of them can be made if not so particularly authorized. Winkler v. Ascension Bank & Trust Co., 182 La. 69, 161 So. 23, Efner v. Ketteringham, 217 La. 719, 47 So.2d 331, Brantley v. Tugwell, 223 La. 763, 66 So.2d 800, and Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437. See also (as to the result reached) Ecuyer v. Benevolent Association of Elks, 152 La. 73, 92 So. 739 and Davis-Wood Lumber Co. v. Canulette Shipbuilding Co., Inc., 164 La. 301, 113 So. 855. No statu-, tory or codal provision specifically authorizing an award of attorney’s fees in a case such as this has been called to our atten-; tion, and the sales contract under consid^ eration does not provide for it.

Plaintiff’s counsel cite in support of the claim, and the district judge evidently based his award on, Raney v. Gillen, La.App., 31 So.2d 495 and Morgan v. Patkin, La.App., 47 So.2d 91, both of which were decisions of Courts of Appeal. However, the authorities relied on in the Morgan case were disapproved by. this court in Rhodes v. Collier, 215 La. 754, 41 So.2d 669, which was followed in Brantley v. Tugwell, supra, and also in Efner v. Ketteringham, supra. Moreover, the holding, in the‘Raney and Morgan cases, assuming for the sake of argument that they conflict with our conclusion herein, are not binding on this court.

For the reasons assigned the judgment of the district, court is amended by reducing, the amount thereof-from $3,250 to $2,-850, and as amended it -is , affirmed. Ap-pellee shall pay the costs1 of this appeal.


author: HAWTHORNE, Justice.

text:
    229 La. 101
    Joseph R. KAIGHEN v. Ruth Cooper KAIGHEN.
    No. 42622.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Tillery & McBride, Arabi, for respondent-appellant.
    Roland R. Selenberg, New Orleans, for appellee.
   HAWTHORNE, Justice.

Joseph R. Kaighen has appealed from a judgment ordering him to pay his wife $170 per month as alimony pending his suit for divorce.

' In this court the husband contends that his wife is not in necessitous circumstances and accordingly is not entitled to alimony pendente lite. In the alternative he argues that, if the court should-find that she is entitled to support, the award made by the district court is excessive and should be reduced.

The rule for alimony was tried in the lower court' in July, 1955. At that time the husband had been employed by the Standard Fruit Company for five years as chief engineer of the S. S. Gatun. The vessel on which he worked was laid up for repairs which were to be completed in October, 1955, and he testified that for this reason he was on reduced pay of $500 a month, but that his normal salary was $750 a month.

At the time the rule was tried the wife was employed as a housekeeper, earning $20 per week and room and board. She testified that she was expecting the birth of a child in October, and that her doctor had informed her that she could continue in her present work for a period of about six weeks at most, and that she would then have no employment or income and would have to rent an apartment and bear the expenses of childbirth. It was admitted in oral argument in this court that the child had been born.

Under Article 148 of the Louisiana Civil' Code, if a wife does not have sufficient income for her maintenance pending a suit for divorce, the court shall allow her a sum for her support proportioned to her needs and to the means of her husband. It is also established in the jurisprudence of this state that the purpose of this article is to enforce the husband’s obligation to support his wife provided by Article 120 of the Civil Code, as this obligation continues to exist during the pendency of a suit for separation from bed and board or for divorce. See Smith v. Smith, 217 La. 646, 47 So.2d 32.

Although in the instant case the wife was employed at the time the rule was tried in the lower court, she had been advised by a doctor to stop working because of her pregnancy, and there was no showing that she would have any income whatever if she followed the doctor’s advice. Consequently it cannot be said that she was not in need at that time. Moreover, in support of his alternative demand, appellant has not advanced any good reason why we should reduce the award made in the instant case. Accordingly we think that the trial judge properly allowed alimony in this case, and that, in view of the husband’s income of approximately $6,000 a year, the award of $170 per month is not excessive.

The judgment is therefore affirmed, appellant to pay all costs.


author: McCALEB, Justice.

text:
    229 La. 105
    Perry H. (Buster) COLEMAN, Jr. v. MANUFACTURERS CASUALTY INSURANCE COMPANY.
    No. 42131.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Camden K. .Staples, Grove Stafford, Alexandria, for plaintiff-appellant.
    Gravel, Humphries, Sheffield & Mansour, Leonard Führer, Alexandria, for defendant-appellee.
   McCALEB, Justice.

This is a suit to recover the $8,000 limit of liability on an insurance policy, plus penalties and attorney’s fees, for a loss arising out of an alleged burglary, which occurred on the night of January 21, 1953 when persons unknown are asserted to have broken into the insured’s warehouse and to have stolen therefrom 115J4 cases of whiskey valued at $8,614.

Following a trial, at which considerable documentary and oral evidence was taken in respect to the verity of the burglary and loss, there was judgment in favor of defendant dismissing the suit. Plaintiff has appealed.

Plaintiff, who is engaged in the retail liquor business in the city of Alexandria, Louisiana, operates a saloon located on North Fourth Street and, in connection therewith, has a warehouse in which he stores his stock of liquors and soft drinks. On October 20, 1952, defendant issued plaintiff its mercantile open stock policy covering this warehouse against burglary and, at that time, an inventory of the liquors on hand was taken by plaintiff which showed that he had stored in the warehouse 269 cases of whiskey valued at $17,055.26. On November 6, 1952, 30 cases of gin, valued at $1,-220.10, were added to plaintiff’s stock and, on January 13, 1953, nine cases of James E. Pepper whiskey,, valued at $640.98, were stored. These items were recorded by plaintiff on the inventory dated October 20, 1952 and, together with the original 269 cases of whiskey, made a total of 308 cases of liquors which were stored in the warehouse prior to the alleged burglary.

Plaintiff claims that, on the night of February 21, 1953, thieves broke into the warehouse and made off with 1151/4 cases of the whiskey shown on the inventory of October 20,1952, specifically being the major portion of a lot of Bourhon (I. W. Harper, Old Grand Dad and Old Taylor) arid Scotch (Ambassador) purchased from John Free-more of New Orleans on July 11, 1952. According to plaintiff, the 115J/4 cases of whiskey represented the remainder of the original stock, excepting the nine cases of James E. Pepper whiskey not taken in the burglary, 1811/4 cases having been withdrawn by him from the warehouse for use in his business between October 25 arid December 26, 1952, which withdrawals were recorded on a stock withdrawal list kept by him in his safe.

The defendant insurer does not question that the above described whiskey had'been purchased by plaintiff and was in storage in his warehouse on October 20, 1952 when the policy was issued but it denies all material allegations as to the nature and extent of the alleged loss.

In view of the pleadings, plaintiff had the burden of establishing by a preponderance of evidence the reality of the claimed burglary and the loss . resulting therefrom. Since the demand was rejected by the district judge, it. is evident that he thought that the .evidence submitted. by plaintiff as to the burglary and loss, or both, was not genuine. Indeed,, tlie chief complaint of plaintiff’s counsel on this appeal, is that the judge erred-in rejecting the evidence of plaintiff and his witnesses, which they claim stands uncontradicted, and they cite the familiar rule of law that such testimony. is to be accepted as true.

.Defense counsel readily acknowledge the cited doctrine but. they question its applicability in this case because plain■tiff’s evidence has been challenged and contradicted by other proof. In this contention, counsel are fully supported by the record.

Accordingly,' since the case involves a simple issue of fact, it remains then to consider whether the trial judge erred in ruling that plaintiff has not established his case by a preponderance of evidence.

In substantiation of his claim,-plaintiff offered invoices of whiskey shipments, receipts of payment, the inventory of October 20, 1952, another inventory allegedly made on December 31, 1952 and a ledger of withdrawals of whiskey from the warehouse between October 25 and December 26, 1952.

Plaintiff also called to the stand several witnesses who stated that there was, at various times prior to the alleged loss, a quantity of whiskey stored in the warehouse. . All of this testimony was indefinite as to the amount in the warehouse as well as the time when it was observed. In view of this, the evidence is of no particular value other than as corroborative of plaintiff’s statement that 115J/4 cases of whiskey were stolen.

Apart from his own statement, plaintiff’s chief .witness was his colored maid, Varié Johnson, who has been in, his employ for ten years working both at his bar and at his home. She testified, among other things, as to a definite amount of whiskey in the storeroom prior to the alleged loss, stating and repeating, that there were 125 cases of whiskey in the warehouse yet she admitted that she cannot count past ten. After reading her testimony, we find it so contradictory and uncertain as to be wholly unreliable.

Hence, in final analysis, plaintiff’s claim must stand or fall on his own testimony and the documentary evidence submitted to prove his loss. A scrutiny of his statement in the light of certain evidentiary facts and circumstances brought out by defendant leaves us with the definite impression that the loss claimed herein is in the realm of doubt. To begin with, although plaintiff and Varié Johnson testify in detail as to the physical evidence of the burglary, i. e., the broken glass.in the front door of the warehouse ; the hasp, and lock torn off and the removal of the’115^ cases of whiskey which had been purchased from John Freemoré, .Detective Bolen of the Alexandria Police Force, who made an investigation ,of the alleged crime, gave evidence which casts doubt upon plaintiff’s claim of loss. The officer stated that, whereas he found that a glass panel was broken.near the night'latch of the front door and that glass was found on the floor inside, it did not appear to have been wálked over as it was not crushed or powdered. This circumstance .tinges with some suspicion the reality of the theft as thé probabilities are that the alleged burglars would have crushed some of the broken glass in the operations necessary in the removal'of 115i/¿ cases of whiskey. Detective Bolen also said that, although he observed two or three sets of footprints leading into and out of the warehouse through the glass front door, which footprints were plainly visible as the warehouse had not been swept for quite some time, there did not appear to have been much traffic across the floor. Here, again, we believe that, if a large stock of whiskey had been removed, it is likely that there would have been more evidence of disturbance by the burglars.

But, above this, we think that the documentary evidence ’introduced by plaintiff renders his claim highly conjectural. Besides the October. 20th inventory, plaintiff submitted another inventory, dated December 31, 1952, which shows that he had on hand at the end of the year 11 Si/2 cases of whiskey. This is the exact amount of whiskey allegedly taken in the burglary. Still, according to the inventory of October 20th, as supplemented by the 30 cases of gin less the withdrawals, there would have been 117J4 cases on hand at the time of the burglary instead of the 115i^ cases 'claimed to have been'stolen. A questioned documents expert testified that,.in his opinion, one or more pages .of the original inventory had been removed and also that one or more pages had been removed from the book containing the list of withdrawals of liquor from the warehouse. And it is also significant to note, with respect to the withdrawals, that the last one listed in the book is December 26, 1952, there being none during the week preceding New Year, a time when purchases of liquor would normally be high.

The record reveals other suspicious circumstances surrounding the loss which we find unnecessary to mention, except one. On January 21, 1953, just prior to the perpetration of the alleged burglary, Mr. Robert Hunter Pierson, an attorney of -the Alexandria Bar who had been appointed to take an inventory of the community of acquets and gains in connection with a pending suit for a separation from bed and board brought against plaintiff by his wife, repaired with two appraisers to plaintiff’s premises where he took an inventory of the assets of his liquor business. Pursuant with his duties, Mr. Pierson asked plaintiff to show him all the liquor on hand and plaintiff complied by exhibiting the stock hé kept in the barroom but he did not give the notary and appraisers any information about the case goods stored in his warehouse. However, op the next day following the alleged burglary, plaintiff showed Mr. Pierson some records respecting the whiskey which had been taken from the warehouse. Mr. Pierson’s testimony is corroborated by both appraisers and they state that plaintiff’s safe, where he swears the inventories and withdrawal lists were kept, was fully examined and that no such lists were found therein at the time of the taking of the inventory.

Finding 'no error in :the conclusion reached by the district court, the judgment is affirmed.

      . Miller v. Hartford Live Stock Insurance Co. Inc., 165 La. 777, 116 So. 182; Bonanno v. Decedue, 186 La. 1041, 173 So. 756 and Cockrell v. Penrod Drilling Company, 214 La. 951, 39 So.2d 429.

      . These figures do not take into consideration the niné cases of-James’E. Pepper whiskey placed in the warehouse on January 13, 1953 which were not stolen in the burglary.


author: MOISE, Justice.

text:
    229 La. 113
    Mrs. Earl Bostwick ATTAWAY et al. v. Claude U. MELTON et al.
    No. 42162.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Malcolm E. Lafargue, Shreveport, for defendants-appellants.
    Love & Rigby, Shreveport, for plaintiffs-appellees.
   MOISE, Justice.

Plaintiffs, Mrs. Earl Bostwick Attaway, Otis E. Pharr, Joyce Pharr, John E.'Hay-good and Janice R. Haygood, filed suit to be recognized as officers o.f the Sterling Service Life Insurance Company and to restrain the named defendants from interfering with their work. The trial judge rendered, judgment in. favor of plaintiffs, making their rule absolute.

Defendants appealed to this Court and filed an exception of no right or cause of action. They also contended that plaintiffs should have proceeded by mandamus and quo warranto.

To this appeal plaintiffs filed a motion to dismiss, alleging that the issues herein involved are moot.

There is no amount in dispute, nor is there a sum to be distributed. The thing in dispute is the right to office.

Article VII, Section 10, of the Louisiana Constitution of 1921, LSA-Const., provides that this Court shall have appellate jurisdiction in civ-il suits where the amount in dispute or the fund to be distributed, irrespective of the amount claimed, shall exceed $2,000.

In the case of Lerner Shops of Louisiana v. Reeves, 224 La. 33, 68 So.2d 748, we held that neither precedent nor authority vested this Court with appellate jurisdiction where monetary terms and amounts were not a-sserted or shown of record, and that the appeal fell within none of the other classifications.

In Succession of Solari, 218 La. 671, 50 So.2d 801, 802, we stated:

“The term ‘the amount in dispute’ in the article of the Constitution fixing appellate jurisdiction means the value of what the plaintiff claims and what the defendant disputes the plaintiff’s claim for. : The value of what is involved in a collateral question which may have to be determined in order to decide the dispute does not govern the appellate jurisdiction. * * * ”

In Gamburg v. City of Alexandria, 227 La. 687, 80 So.2d 372, 373, we refused appellate jurisdiction in an injunction proceeding, because no specific amount was involved. We stated:

“Plaintiff contends that because of these changes and innovations his property has been depreciated in value.
“Since,.the, relief sought is injunc-tive, as shown by plaintiff’s prayer, we conclude that this Court does not have jurisdiction.”

See, City of New Orleans v. Langenstein, 227 La. 770, 80 So.2d 402.

For the reasons assigned, and by virtue of the authority vested in 'this Court by Act No. 19 of 1912, LSA-R.S. 13:4441, it is ordered that this appeal be transferred to the Court of Appeal for the Second Circuit, provided the record is filed in that court within thirty days from the date this judgment becomes effective — otherwise, the appeal shall be dismissed.

PONDER, J., absent.


author: MOISE, Justice. HAWTHORNE, Justice

text:
    229 La. 116
    Jasper N. MORRISON v. DEPARTMENT OF HIGHWAYS, State of Louisiana.
    No. 42521.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    Breazeale, Sachse & Wilson, Victor A. Sachse, Baton Rouge, for appellants.
    W. Crosby Pegues, Jr., Louis S. Quinn, D. Ross Bannister, Baton Rouge, for ap-pellee, Department of Highways.
    R. B. Walden, Baton Rouge, for Department of State Civil Service, amicus curiae.
   MOISE, Justice.

Appellant, Jasper N. Morrison, an employee of the Highway Department, State of Louisiana, with a permanent Civil Service status, who by choice was not a member of the Louisiana State Employees’ Retirement System, was removed from his position for no cause other than that he had reached the age of seventy years.

Appellant bases his appeal to- this Court on the following errors of law:

(a) Age, alone, does not, in fact, constitute a disability or .inability to perform many kinds of public service, including the kind performed by the Appellant, and, therefore, is not a cause for removal from public Or civil service.

(b)- The rule making power of the Civil Service Commission does not permit it by hat to attempt to make “cause” something which is not in fact “cause” and hence Rule 12.9(b) is invalid, illegal, ' discriminatory .and unconstitutional.

(c) The attempt in said Rule to deny an appeal to the Commission emphasizes that the Rule is arbitrary, not related to “cause” in the true sense and is destructive of the prime purpose for incorporating the benefits of civil service in the constitution of the State.

The' gravity of the situation in this case can only be appreciated from a factual picture.

The Highway Department adopted a resolution which removed Jasper N. Morrison from his employment. Morrison took an appeal to the Civil Service Commission, to which the Highway Department filed an exception of no legal right or cause of action. The Commission dismissed the exception and ordered appellant reinstated to his position. It gave as reasons for judgment those rendered in the Bloomenstiel case, Civil Service Commission Docket No. 53, reading as follows:

“The Civil Service Amendment was designed to provide a Classified Service under a general system based upon merit, efficiency, and fitness, 'and to* that •end it vested the power and authority upon this Commission to make rules, having the effect of law,' regulating, employment, removal and qualifications of employees in the Classified Service, and all personnel matters. (Constitution Art. XIV, Sec. 15, (A)’(l) and (I) [LSA-Const.]. This grant includes the power to regulate retirement of employees if required ■ by the' public interest.
“The Commission has-not-adopted any rule' regulating the"retirement of. employees in the Classified Service,- and.n neither the Constitution nor any statute.. of the State fixes an age for the compulsory retirement of - permanent employees in the State Classified Service who are not members of any State Retirement System. The absence of regulation by this Commission is no obstacle to the .removal of an employee whose age has rendered him 'incapable to perform his duties efficiently.
“Despite.the fact that"appellant was then 73 years old, his services were declared to be satisfactory 19 days after the Board of Highways adopted its resolution approving the attempted establishment of 70 years as the age for compulsory retirement of Classified employees in the Highway Department. This circumstance and the fact that the policy referred to was held inoperative for more than one year after its approval by the Highway Board, is persuasive that it was not deemed imminently necessary for the efficient administration of the Highway Department.
“The recent case of Nichols v. National Tube Co. (decided May 13, 1954, reported [D.C.] 122 F.Supp. 726), decided by Judge Jones of the United States District Court for the Northern District of Ohio, bears an analogy to the case before us. In that case a collective. bargaining contract provided that an employee could be discharged only for cause. The plaintiff’s employment was'terminated upon the sole ground that he had reached the age at which, according to a -policy put into -uniform practice by the employer, allot its employees were to be retired, regardless of their physical fitness to continue with the work they were- doing- at-the time. The Court held that the legal and practical effect of compulsory retirement is the same as a discharge, and that no “cause” hail " been established upon which to base the forcible termination of-’plaintiff’s employment.
“The appellant before us is protected ...by a constitutional provision which expressly provides that1 he shall not be demoted, dismissed, or discriminated against, except for cause (Const. Art. XIV, Sec. IS (N) (1). We are in ac•cord with the conclusion' reached by Judge Jones that age alone cannot constitute ‘cause’ for terminating an employment, and we adhere to our previous holdings that no ‘cause’ is shown for the termination of the employment of an employee who has acquired permanent Civil Service status where there is no proof of substantial shortcoming which renders continuance of the employee in employment in some way detrimental to the discipline or efficiency of the Civil Service. Compare Hayes v. Civil Service Commission of Chicago, 348 Ill.App. 146, 108 N.E.2d 505, and State ex rel. Matson v. O’Hern, 104 Mont. 126, 65 P.2d 619.”

From the Commission’s .judgment the Highway Department appealed to this Court, and during the pendency of that appeal the Civil Service Commission amended its Rule 12.9 by the adoption of Rule 12.9(b), which reads as follows:

“Employees in the classified service who are not members of the Louisiana State Employees’ Retirement System or any other retirement system for State employees shall be separated upon attainment of the age at which employees who’ are members of the' retirement system in effect in the'ir‘ department may' be retired in which event they shall have no right of appeal to "the Commission; provided such non-members may be continued in service beyond the regular mandatory retirement age for members if the retirement plan in effect in their department contains provisions for continuance in service of members but such' continuance in service must be for reasons deemed to be in the best interest of the State service and be approved in advance by the Director of Personnel and must conform insofar as practicable to the procedure specified for continuation in service of members in the retirement plan in effect in the department.”

Following the adoption of Rule 12.9(b) by the Civil Service Commission, the Highway Department dismissed its appeal to this' Court and again removed appellant from1 his position.' ■ Appellant again' appealed to the Civil Service Commission,-!to which the Highway Department filed an exception of no legal- right or cause Of action. Because of the Rulé 12.9(b), now under attack,''the Commission sustained the exception, and thereupon, appellant appealed to'this Court.

Nowhere does the Constitutional amendment give the Civil Service Commission anything to do with retirement or retirement benefits. Another State Agency is charged with that responsibility and authority. Retirement.is not dealt with in the amendment, unless by mental gymnastics we could come to construe that “removal” means “retirement”. These words are not synonymous. As a matter of' common sense, what would become of the Retirement System established by the LSA-Revised Statutes 42:541 if the Civil Service Commission had full power and control over the retirement of employees?

The- Retirement. Act specifically excludes from its scope those who elected — by choice granted by the Legislature- — not to become members of the Retirement' System.

'If the Civil Service Commission can exercise the enterprising ambition to- further extend its 'power, and, by its contention that “removal” means “retirement”,, can put under the disadvantages of the retirement system without benefits those who are not members of the system, where does its authority end?

Is the age of seventy causé fór removal? The Civil Service Commission ■ has clearly said that it is not. In the Luther Lewis, Carlock, Bloomenstiel cases, it said:

■“We pointed out that the Civil Service Amendment (which makes no provision for compulsory retirement at any age) prohibits the 'discharge 'of a classified employee except for ‘cause’, and that an employing authority could not on the basis of age alone discharge an employee who admittedly could properly perform the duties of his position.”

The position of the Commission is that it can make a rule which in itself constitutes cause. While it referred to its rule making power when it struck down the action of the Highway Department, we cannot see how it could adopt a rule that age alone would constitute “cause” after it had solemnly declared that “age alone cannot constitute ‘cause’ ”. Such a rule then violates the Constitution — at least, it violates the construction of the Constitution made by the Civil Service Commission as late as November 22, 1954.

In Epley v. Commissioner of Internal Revenue, 5 Cir., 183 F.2d 1020, 1024, the Court struck down regulations of the Commissioner of Internal Revenue which the Court found to be “directly contrary to the spirit and letter of the statute and void”.

The Court of Appeal for the First Circuit in Kramer v. State Board of Veterinary Medical Examiners, 55 So.2d 93, held squarely that the rule making powers granted to boards did not empower them to enlarge their own powers through their rule making powers.

Furthermore, in the case of Teche Lines, Inc., v. Louisiana Public Service Commission, 203 La. 604, 14 So.2d 460, we expressly held that rule making powers of the Public Service Commission did -not permit it to draft any rule inconsistent with the Constitution of the State.

The constitutional provisions protect the permanent status of Civil Service employees, and the Honorable Civil Service Commission is charged with the duty and responsibility of giving that protection. We have here a misconception of the law in destruction of the law.

Therefore, this appellant, Jasper N. Morrison, having never been legally removed from service, still retains his position and is entitled to all of the emoluments therefrom from the time of removal.

For the reasons assigned, the ruling of the Civil Service Commission is reversed and set aside.

HAWTHORNE, Justice

(dissenting).

It is my view that the ruling of the Civil Service Commission in this case is correct and should be affirmed.

Appellant was removed pursuant to the requirements of Rule 12.9(b), quoted in the majority opinion. This rule, which has the effect of law, the Commission had power and authority to adopt under Article 14, Section 15(1), of our state Constitution, which provides: “There is vested in the State Civil Service Commission * * * the authority and power * * * to adopt * * * and enforce rules which shall have the effect of law, regulating employment, * * * removal, qualifications, and other personnel matters * * * and employment conditions * * *, and carrying out generally in the foregoing respects, and as may be otherwise necessary to that end, the provisions and purposes of Civil Service * * (Italics mine.)

R.S. 42:585 requires compulsory retirement of state employees in the classified service who are members of the Louisiana State Employees’ Retirement System upon attainment of age 70. This statute has no application to state employees in the classified service who are not members of this system. To place all state employees who are in the classified, service in the same situation as to retirement and to provide uniform requirements as to the retirement age, the Commission adopted Rule 12.9(b). It is thus apparent that this rule is one “regulating employment” and “removal”, and hence authority to adopt it is vested in the Commission by Article 14, Section 15(1), of the Constitution.

I respectfully dissent.

On Petition for Rehearing

Rehearing denied.

McCALEB, J., dissents.

HAWTHORNE, J., adheres to his dissent on the original hearing.


author: MOISE, Justice. HAWTHORNE, -Justice

text:
    229 La. 126
    W. R. CHADWICK v. DEPARTMENT OF HIGHWAYS, State of Louisiana.
    No. 42522.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    Breazeale, Sachse & Wilson, Victor A. Sachse, Baton Rouge, for appellants.
    W. Crosby Pegues, Jr., Louis S. Quinn, D. Ross Bannister, Baton Rouge, for ap-pellee, Department of Highways.
    R. B. Walden, Baton Rouge, for Department of State Civil Service, amicus curiae.
   MOISE, Justice.

This appeal is a companion case to that of Jasper N. Morrison v. Department of Highways, State of Louisiana, 229 La. 116, 85 So.2d 51. The two cases were consolidated in this Court for argument.

Appellant, W. R. Chadwick, was discharged from his position with the Department of Highways, State of Louisiana, effective March 31, 1955, under the mandatory provisions of Rule 12.9(b) of the Louisiana State Civil Service Commission. The matter is now before- us for review.

For the reasons assigned in the case of Morrison v. Department of Highways, State of Louisiana, La., 85 So.2d 51, it is ordered that appellant, W. R. Chadwick, having never been legally removed, be entitled to retain his position with all of the emoluments therefrom from the time of removal.

The-ruling of the Civil Service Commission is reversed and set -aside.

HAWTHORNE, -Justice

(dissenting).

For the reasons given in my dissenting opinion in the case of Morrison v. Department of Highways, State of Louisiana, 229 La. 116, 85 So.2d 51, I respectfully dissent.

On Petition for Rehearing

Rehearing denied.

McCALEB, J., dissents.

HAWTHORNE, J., adheres to his dissent on original hearing.

      . 229 La. 116.


author: FOURNET, Chief Justice.

text:
    229 La. 128
    Charles Allen ELLIOTT v. GENERAL GAS CORPORATION.
    No. 41847.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      Louis Lyons, Bossier City, for plaintiff-appellant.
    Morgan, Baker & Skeels, Ado C. Skeels, Shreveport, for defendant-appeliee.
   FOURNET, Chief Justice.

Charles Allen Elliott, a carpenter by trade, having been discharged by his employer, General Gas Corporation, upon completion of certain repair work for which he had .been employed, instituted suit for the recovery of the amount due him for wages, $140, being at the rate of $1.75 per hour for ten days’ work-.of eight hours per day, and, availing himself of the provisions of LSA-R.S. 23:631 and 23:632, is seeking to recover an amount representing fyll wages at the same rate for a forty hour week from the time of demand for payment until paid, plus a reasonable attorney’s fe'e of $250. The defendant admitted it owed the plaintiff $140 but denied any further liability, and pleaded that it had made a tender of the amount to plaintiff by its check, for $128.32 (representing payment in full for the ten days* wages, less withholding tax and Social Security in the,.amount of $19.40 and including accrued interest to date of tender of $1.12, and court costs of $6.60) which Was ’ refused by plaintiff. On the trial of the case judgment for $128.32 was rendered in favor of plaintiff, at his cost, and he. has appealed.

The plaintiff, employed along with another carpenter to make inside repairs to a company-owned house about a mile from the defendant’s Bossier Parish branch office (on the Benton Road), began work in November of 1952, at a rate of pay of $1.75 per hour. According to his version of the happenings, which is not disputed except in one particular, the work continued. through January 14, 1953, when plaintiff was informed his services were no longer needed since the work was almost completed. On the 16th of January, a Friday, plaintiff called at the office and asked for ■ his pay; he was informed that his check had not yet come, but should be there in a day or so. On the following day, Saturday, a phone call was made to plaintiff’s home; he being absent, a mes-, sage was left that his.check had been received and he could get it. On Monday, January 19, plaintiff called at the office of the defendant, received his check, and upon preparing to cash it in Shreveport realized that the amount was short. This angered him and he returned to the office, laid the check down and said, “The check’s not right and I will not accept it;” he then told the employee on duty: “Here’s my time, got every day of' it set down',” following which he turned around and walked out. The plaintiff does not recall that anything further of interest to him was said, although the employee states he told plaintiff that the manager’s attention would be called to the alleged shortage and plaintiff could check back with them— this being the only conflict in testimony in the entire case. After the' above incident of January 19, 1953, no effort was made:by either the plaintiff or the defendant to get the matter amicably settled. On the 15th of February, 1953, suit was filed. On March 21, 1953, the defendant:-tendered to the plaintiff, through his attorney, the sum of $128.32, representing payment in full of the ten days’ wages — withholding tax and Social Security having been deducted, accrued interest and court costs to date having been included — which was refused.

In the year 1920 the Legislature of this State, " mindful of an evil practice then prevailing among sothe employers of forcing a discharged laborer to wait until pay day, or longer, to , receive the wages he had ■earned, adopted its Act 150, requiring that the laborer or employee be paid any amount regularly due under the terms of the employment within twenty-four hours after discharge, upon demand being made upon the employer at the place where payment was usually made (now "LSA-R.S. 23:631); ■and as a coercive means to compel obedience, the employer was made liable to the employee “for his full wages from the time the demand for payment by the discharged or resigned laborer or employee was made, until the employer shall pay or tender payment of the amount due to such laborer or other employee”, plus a reasonable attorney’s fee (as amended; now- LSA-R.S. 23:632). ■ However, the latter provision, being penal in nature, has been strictly construed by the courts and may be open to equitable defenses.

Under the particular facts of' this case we agree with the trial judge in his equitable conclusion that this is not a proper instance for the application of penalties. The record clearly shows that the plaintiff’s pay was made available for him on Saturday, within 24 hours after his demand, and that He called for it only on .the following Monday; it is equally clear that the shortage in the pay check tendered to plaintiff was occasioned by a day’s' work performed on January'!, 1953, a holiday, when the only two employees of the branch office who worked were the two carpenters (plaintiff and another) engaged in the repair work on the house; that there was no record of such work," either in the local office or in the Baton Rouge office, as it was" reported to no one,; and that the company was unaware that such work had been performed until the branch manager, in checking with the other carpenter (who acted as timekeeper) following plaintiff’s complaint, for the first time learned of the work on January 1, and that this carpenter’s pay check had also been a day short. We are impressed with defendant’s prompt efforts to set matters straight; its claim that the correct amount was available to plaintiff at its office on the day following his visit of Monday, January 1.9, and continuously thereafter — instructions having been left that he was to be paid the additional amount from petty cash — not only found favor with the District Judge, as shown by his written reasons, but is consonant with the pattern of admitted facts in this case.

For the reasons assigned, the judgment is affirmed.

PONDER, J., absent.

      . When submitted to the District Court for ' judgment on the merits, the plaintiff’s demands were $4,030, exclusive, of interest and costs.

      . Defendant’s principal office is in Baton Rouge; it was there that payroll checks were made up and sent to the district office in Bossier City following submission of pay-order requests covering employees who worked on an hourly basis. The checks usually arrived a couple of days after the pay period had run.

      . The 1920 Act was amended by Act 138 of 1936 by extending its provisions to an employee who had resigned, and allowing attorney’s fees.

      . See Deardorf v. Hunter, 160 La. 213, 106 So. 831; Hazel v. Robinson & Young, 187 La. 51, 174 So. 105; Bannon v. Techeland Oil Corporation, 205 La. 689, 17 So.2d 921; Strickland v. American Pitch Pine Export Co., 224 La. 949, 71 So.2d 338.


text:
    229 La. 134
    Jannie Neal AMOS v. J. Woodrow WAGGONER.
    No. 42188.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    H. Minor Pipes, Houma, Tucker & Schonekas, New Orleans, for defendant-appellant.
    Elton A. Darsey, Houma, for plaintiff-appellee.
   McCALEB, Justice.

This is a suit for cancellation of a mineral lease because of its termination by the lessee’s failure to pay delay rentals. Proceeding under R.S. 30:102, plaintiff also seeks recovery of her attorney’s fee in the sum of $500. There was judgment for plaintiff as prayed for in the trial court and defendant has appealed.

The undisputed facts of the case are that plaintiff, an uneducated colored woman, acquired a 15-acre tract of land in Ter-rebonne Parish on January 3, 1944, by authentic act from Robert B. Butler, formerly Judge of the Seventeenth Judicial District Court, who reserved one-half of the oil, gas and other minerals and was also given the exclusive right to execute for himself and plaintiff all mineral leases on the property. Defendant, a mineral lease broker, secured the lease in contest on February 21, 1952, paying plaintiff a cash consideration of $75 for the grant. The lease was of a drill or pay type with a primary term of. 10 years and provided that it would terminate on its anniversary unless the lessee either commenced drilling operations or paid to the lessor a rental of $5 per acre or $75 annually for the 15 acres it covered.

Defendant did not record the lease but Judge Butler nevertheless soon learned that plaintiff had granted it. On September 12, 1952, he contacted defendant and informed him that the lease was invalid as he alone had the right to lease the minerals and that, pursuant to his authority and acting for himself and as plaintiff’s agent, he had leased the minerals on the day before (September 11, 1952) to the Tide Water Associated Oil Company. On this occasion, Judge Butler refunded to defendant the bonus money of $75 which had been paid to plaintiff for the lease. Defendant accepted Judge Butler’s check but has never cashed it, having retained it in his possession until the trial of this case.

Thereafter, defendant evidently considered that the contract had been rescinded as he did nothing to preserve his rights under it and, specifically, did not pay the delay rental which fell due on February 21, 1953: However, on January 4, 1954, the date when Judge Butler’s one-half mineral interest in the property prescribed because of non-usage, defendant recorded his lease and, on February 19, 1954, deposited to plaintiff’s account in the Citizens National Bank and Trust Company of Houma, the depository named in the lease, the sum of $75 to cover the delay rental which would have been due on February 21, 1954. When plaintiff learned that defendant had deposited a delay rental to her account, she retained an attorney who wrote defendant on April 29, 1954, enclosing a refund of the deposit and requesting that the mineral lease be cancelled because of non-payment of the delay rental due on February 21, 1953. The defendant returned the attorney’s letter and check without comment. Wherefore this suit.

The foregoing statement of the case makes it manifest not only that plaintiff had no authority to execute the lease to defendant but that the latter was well aware of the invalidity of it at the latest on September 12, 1952 when Judge Butler informed him of his contractual rights under the deed of January 3, 1944. And, by accepting Judge Butler’s check in the amount of $75 to reimburse him for his bonus payment, defendant recognized that the contract was unenforceable and acquiesced in its cancellation as of that date. Berger v. Quintero, 170 La. 37, 127 So. 356. Accordingly, were defendant resisting plaintiff’s demand on the ground that the agreement had been previously dissolved by mutual consent, her suit would have to be dismissed.

But defendant does not assume that position. Instead, he affirmatively asserts in his answer that the contract is in full force and effect and that he has not defaulted in his obligation by failing to pay the delay rental falling due February 21, 1953, since .plaintiff had already breached the ■ contract as she was unable to deliver the right of possession as prescribed by Article 2692 of the Civil Code. It is said by defense counsel that her inability to perform her implied obligation to deliver possession suspended defendant’s obligations under the lease until January 4, 1954, when she became vested with Judge Butler’s mineral interest and thus acquired the unencumbered right to deliver possession to defendant. In substantiation of this contention, counsel rely on a'line of mineral lease cases holding that, when the lessor by reason of a lawsuit brought for the purpose of annulling or cancelling the lease, has deprived the lessee who is finally successful in the litigation from exercising his rights under the lease, such' lessee is entitled to an extension of the term of the lease for the'period during which the litigation was pending in order to afford him all of the time stipulated in the contract for the performance of his obligations.

Defendant’s .proposition is not well founded. His affirmative plea for- enforcement of the lease is tantamount to the seeking of a specific performance of the contract which cannot be granted him when he, himself, -ha£ not performed the obligations required of him thereunder. Joffrion v. Gumbel, 123 La. 391, 48 So. 1007; Pratt v. McCoy, 128 La. 570, 54 So. 1012; Seeger v. Seeger, 169 La. 611, 125 So. 732; DiCristina v. Weiser, 215 La. 1115, 42 So.2d 868 and Shell Oil Company v. Hogan, 228 La. 37, 81 So.2d 761.

The lease provides that it shall terminate unless the lessee either commences operations for the drilling of a well or pays annually a delay rental during the primary term on or before-its anniversary date. Under such a provision, defendant cannot escape 'termination on the theory that his time to pay delay rentals was extended because of plaintiff’s inability to give him possession for drilling purposes, in the absence of a showing that she actively made performance by him impossible or so hazardous by the initiation of legal proceedings that it would be 'inequitable to expect him to perform within the contractual period’.. There is no room for equity on defendant’s-side of-this case. He neither intended to-explore for minerals nor did he demand' possession. In reality, aware that the lease was not enforceable, he remained quiescent until Judge Butler’s mineral interest reverted, at which time he attempted to resurrect his lapsed rights by recording the contract and depositing a delay rental to-plaintiff’s account. We hold these efforts-ineffectual and that he is not entitled to enforcement of the lease when he has not timely complied with his obligations.

The cases relied on by counsel are not apposite for the reason, among others,, that the lessees in those matters were not in default at the time the suits were instituted by the lessors. It was only because-of the pendency of the suits that the obligations of the lessees, who were ultimately successful, were temporarily suspended.

. Def endant also contends that he has-acc.ounted for the delay rental due on February 21, 1953 as the $75 he paid in con.-sideration for the lease was sufficient to-cover that delay rental for the reason that plaintiff 'only had a one-half interest' in the minerals and that Section 10 of the-lease grants him the right to reduce the-amount of delay rentals if the lessor owns-less than an entire undivided interest in. the mineral rights.

There is no merit in the point. Suffice it to say that the $75 was a bonus payment and, consequently, no part of that sum could-be applied to the payment of delay rentals..

The judgment appealed from is affirmed..

      . This lease was recorded on September 29, 1952.

      . We suspect that defendant knew that plaintiff had no power to lease the minerals at the time he made the lease as he admittedly went to the conveyance records and obtained the description of the land from the deed to plaintiff from Judge Butler. Defendant swears that he did not read the act but, considering his testimony and conduct as a whole, we are not impressed by his denial of knowledge.

      . Leonard v. Busch-Everett Co., 139 La. 1099, 72 So. 749; Gulf Refining Co. v. Hayne, 148 La. 340, 86 So. 891; Standard Oil Co. v. Webb, 149 La. 245, 88 So. 808; Fomby v. Columbia County Development Co., 155 La. 705, 99 So. 537; Williams v. James, 188 La. 884, 178 So. 384 and Baker v. Potter, 223 La. 274, 65 So.2d 598. All of the foregoing matters involve mineral leases except Williams v. James.


author: TATE, Judge.

text:
    Willis R. SANDERS, Plaintiff-Appellant, v. Lionel SANDERS et al., Defendants-Appellees.
    No. 4119.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1955.
    Rehearing Denied Feb. 3, 1956.
    Blanchard;'& Blanchard, Donaldsonville, for appellant.
    Menuet & Triche, Napoleonville, for ap-pellees.
   TATE, Judge.

This appeal is from judgment sustaining a co-heir’s opposition to a tableau of distribution of the proceeds of a partition by licitation (public sale). The judgment overruled plaintiff’s pleas of prescription arid estoppel to the opposition, and ordered the Notary Public to list the opponent’s claim of $313 for reimbursement of funeral expenses allegedly paid by the latter.

The claim concerns the funeral expenses of Elnora Sanders, mother of both plaintiff and opponent, from whom they inherited the property sold. Lionel Sanders, the opponent co-heir allegedly paid them prior to November 14, 1950. Suit for partition of the property inherited was brought on January 2, 1954, by Willis Sanders, opponent’s brother, who had purchased the interest of several other co-heirs. The answer filed by Lionel Sanders on May 12, 1954, was the first formal demand made for reimbursement of the $313 funeral expenses. Lionel Sanders was, of course, subrogated to the privileged claim for funeral expenses by mere payment thereof, without any formal conventional subrogation, Article 2161(4), LSA-Civil Code; Succession of Holston, La.App., 141 So. 793.

Plaintiff pleads that parol testimony to prove this indebtedness is inadmissible under LSA-R.S. 13:3721, 13:3722, prohibiting parol evidence “to prove debt or liability of deceased” if suit is brought more than 12 months after death of the deceased. However, as pointed out in Rochelle v. Russ, La.App., 54 So.2d 856, 858, funeral expenses are not a debt of the deceased, but “a charge upon the estate” of a highly privileged nature, secured by a privilege upon movable and immovable property of the estate; see Articles 3191, 3252, 3254, LSA-Civil Code. It was held in that case that parol testimony was admissible to prove the funeral expenses although the demand was not made until almost three years later.

Plaintiff also pleads that the funeral expense is an open account subject to the three years’ prescription of LSA-Civil Code Article 3538. While this might be a valid bar by one who individually contracted the claim as against a funeral home, as pointed out in the Rochelle case insofar as regards the property of the estate, funeral expenses are a privileged charge against same. This privilege upon the property of the estate does not need to be recorded, Article 3276, LSA-Civil Code. So long as the estate is not settled and the heirs hold the property in indivisión or under administration, they hold it subject to said charge. “The usual statutes of limitation does not always apply to claims against the estate for matters arising after the death of decedent, as, for instance, for funeral expenses and costs of administration”, 21 Am.Jur. 891, Verbo “Executors and Administrators”, Section 924. See Succession of Felps, La.App. 1 Cir., 191 So. 738, where it is commented that the District Court had allowed a privileged funeral claim to prime the claim of a conventional mortgagor, although filed for the first time more than 3 years after death, which action was not appealed. We do not have before us a case where a third party was prejudiced by the delay to assert or to record the privilege, so as to estop the privilege-holder. Bauman v. Armbruster, 129 La. 191, 55 So. 760.

Finally, plaintiff-appellant urges that although the plea of prescription was tried on the face of the papers, the District Court rendered judgment ordering listing of the full funeral claim of $313, even though appellant has a defense in that burial insurance paid a great part of this sum. The record reflects that on September 9, 1954, the opposition was filed to the tableau of distribution. By motion on November 15, 1954, this opposition was fixed for trial on Tuesday, November 23. The minute entry indicates that on November 23, 1954: “This case having been fixed for this day was accordingly taken up and tried. On motion of Mr. Blanchard a plea of estoppel and plea of 3 years prescription was filed in open court. After argument the court ordered that briefs be filed in this matter and the same would be taken under advisement.” Thus, the record by which this appellate court is bound reflects that the opposition was tried, subsequent to which the plea of prescription was filed.

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

Affirmed.


author: McBRIDE, Judge.

text:
    Mrs. Mary McAVIN, wife of Frederick Bensel v. MORRISON CAFETERIA COMPANY OF LOUISIANA, Ltd. and London Guarantee and Accident Company, Ltd.
    No. 20584.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Stanley A. Baron, New Orleans, for plaintiff and appellant.
    Montgomery, Barnett, Brown & Sessions, New Orleans, for defendants and ap-pellees. -
   McBRIDE, Judge.

This is a suit' for damages resulting from food poisoning which' plaintiff alleges was caused as a result ■■bf ingesting unwholesome food in the first-named defendant’s establishment. Said defendant operates a cafeteria where prepared food is sold to the public for consumption 'on the premises. Plaintiff alleges that she-was rendered ill from having eaten shrimp salad served her in- the cafeteria and demands a large amount in damages for her suffering. The lower court gave her judgment for $200 in solido .against the operator of the cafeteria and its liability insurer, from which she has appealed seeking an increase in the amount. Appellees answered the appeal praying for a reversal of the judgment and a dismissal of plaintiff’s suit.

The defense is that plaintiff’s illness was in no way caused by or resulted from her having consumed contaminated food. The answer alleges that the food prepared and served in the cafeteria is always properly prepared and wholesome.

We are in accord with the trial court in his finding that plaintiff was poisoned as she alleges. Between the hours of 1:00 and 2:00 p. m., on June 23, 1954, she entered the cafeteria and ordered a lunch consisting of shrimp salad, rolls and coffee. After consuming a small portion of ■ the salad and discovering that it had an acrid odor and tasted bad, she ate no more of it. She commented to her companions why she did -not eat the salad. She says she felt badly that afternoon, went home, and in the evening she partook only of soup and tea for supper. Although her stomach was upset, the next morning she reported to her employer’s office for work as usual. At lunch time she ate sparingly. That evening about 4 o’clock she felt worse and found it necessary to her comfort to remove her girdle. Her abdomen began to swell and she experienced nausea, "dizziness and perspired-freely. She then left her office and proceeded to her home in a taxicab. She claims she vomited almost continuously for at least an hour; her color changed to almost white, her lips became blue, and she fainted, and after regaining consciousness she continued to experience the vomiting and diarrhea and got weaker as time went on. Plaintiff’s husband, becoming alarmed, endeavored to summon their family physician but learned that he was out of town. The husband then contacted the Charity Hospital, which sent an ambulance in charge of Dr. K. D. McGinnis to plaintiff’s home about 12:15 in the morning. However, plaintiff refused to go to the hospital, whereupon Dr. McGinnis administered a sedative, prescribed certain medicine, and advised plaintiff to remain in bed taking only liquids ■ by mouth as tolerated. The plaintiff states that during the remainder of that night the vomiting and looseness of the bowels persisted and she experienced severe cramps. Her suffering continued for several more days, her condition improved only gradually, 'and two weeks elapsed before she began to feel normal.

There is no medical testimony in the record. However, by agreement of counsel a statement written by Dr. McGinnis, who saw the plaintiff the one time, was admitted in evidence. The pertinent part of the statement reads:

“Mrs. Bensel gave the history of ingestion of a foodstuff, commonly implicated in conditions such as hers, followed shortly by progressively severe nausea, vomiting and diarrhea — this beginning, at about 9 P.M. of the preceding evening and continuing until the time of examination. She then exhibited signs of moderately severe dehydration with considerable weakness but with a blood pressure within normal limits. The body temperature was moderately elevated.
“With these' findings, the presumptive diagnosis of Staphylococcus toxin gastroenteritis (food poisoning of one type) was made. The patient was given a sedative and a parasympatho-lytic drug hypodermically — to decrease gastrointestinal irritability and hyper-motility — and she was advised to remain in bed taking only liquids by mouth as tolerated. Hospitalization was not mandatory but she was advised to have her condition followed by her private physician. A medicine with action similar to the one described above was prescribed to be taken orally.”

In order to prove that there was no negligence on the part of the operator of the cafeteria, the defendants produced the assistant-manager, who testified that any food served to patrons of the cafeteria which had been mixed with celery and mayonnaise, such as shrimp salad, was disposed of on the very day it was prepared, and that on the day the plaintiff says she became ill no shrimp salad could have been held over from any previous day. The assistant-manager further testified that 122 portions of shrimp salad had been served to customers on June 23, 1954, and that no customer save the plaintiff made complaint about the salad.

Counsel for defendants argue that in view of this testimony emanating from the assistant-manager that plaintiff in order to recover should have proven that other customers consuming the shrimp salad had been stricken as was plaintiff. We do not agree with counsel. Plaintiff carried only the burden of proving that the food which was served to her was deleterious and caused her illness, and we know of no law which would place an additional burden on her of showing that other persons had become ill from eating the shrimp salad. We believe that plaintiff has successfully carried the burden of showing that the shrimp salad was contaminated and caused the food poisoning she sustained.

Defendants’ evidence falls far short of showing the cafeteria’s freedom from negligence. All that the assistant-manager said was that the custom was to dispose of certain foods on the day they were prepared if not sold in the course of the day’s business. But there is no testimony tending to show how the employees of the cáfe-teria prepared and handled the particular portion of shrimp salad which was served to plaintiff. It may well have been that some employee had been careless in its preparation or perhaps the salad may, notwithstanding the custom the assistant-manager spoke of, have been left over from a preceding day. Perhaps, too, the offending portion of shrimp salad might have been left uniced for a sufficient period of time to permit it to spoil.

This case involves the principle of law that the seller of foodstuffs is bound to warrant their wholesomeness and that every one should know .of the qualities of the things he manufactures and. sells and that the lack of such knowledge is imputed to him as a fault rendering him liable to the purchaser for any vices or defects of the things. Defendants are clearly. liable unto plaintiff for the amount of. her damages. Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 So. 906, 40 L.R.A.,N.S., 480.

We feel that the award of $200 for plaintiff’s suffering is inadequate and that the amount should be increased to $400; we are unwilling to allow more because it occurs to us that plaintiff has somewhat exaggerated the extent of her illness. She only remained away from work one day. Although she claims she suffered nineteen days in all, it seems strange that she did not see fit to place herself in the care of a physician. The only medical attention she received was at the instance of Dr. Mc-Ginnis who came to her home with the ambulance.

For the reasons assigned, the judgment appealed from is amended so as to increase the amount to $400 and as thus amended and in all other respects it is affirmed.

Amended and affirmed.


author: JANVIER, Judge. PER CURIAM

text:
    Mrs. Florence LACROIX, wife of and John Lacroix v. Arthur FINKE.
    No. 20563.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Supplemental Opinion Feb. 7, 1958.

      Comiskey & Schaff, Val A. Schaff, III,; New Orleans, for defendant-appellant.
    Harry P. Gamble, III, New Orleans, for plaintiffs-appellees.
   JANVIER, Judge.

In this tort action plaintiffs, husband and wife, seek recovery for personal injuries sustained in an automobile accident, and the husband also claims the cost of repairing the automobile, all of which results from an intersectional collision.

There was judgment in the Civil District Court for the Parish of Orleans in favor of Mrs. Florence Lacroix in the sum of $100 and in favor of John Lacroix for $566 and defendant has appealed and both plaintiffs have answered the appeal praying for an increase in the amounts awarded.

We fully agree with the reasons given by the District Judge for holding the defendant liable, though we feel that the amounts awarded to the two plaintiffs for physical injuries are somewhat inadequate. We adopt the reasons of the District Judge insofar as the question of liability is concerned and now set them forth and shall then comment on the amount allowed the plaintiffs:

“This is a suit to recover property damage and personal injuries by a husband and wife as a result of an in-tersectional collision in the City of New Orleans the day before Christmas in 1952, at 4:45 p. m., at the intersection of Upperline and Laurel Streets, in the City of New Orleans.
“Both streets are paved; Laurel being a one-way street going downtown, or towards Canal Street, and Upper-line is a two-way street from the river to the lake. The intersection is not controlled by any ‘Stop’ sign or semaphore signal, but under the city ordinance the automobile travelling on Laurel Street approaching the right of the automobile travelling on Upperline would have had the right-of-way over the automobile on Upperline Street assuming both reached the intersection at the same time and under the same conditions. Plaintiffs’ automobile was on Upperline and the defendant’s automobile on Laurel Street.
“From the testimony of Finke himself he was travelling about 30 miles an hour as he approached the intersection. He testified he saw the plaintiffs’ car in the middle of the intersection and tried to avoid hitting it by skidding to the left. He didn’t avoid striking plaintiffs’ car, but struck it on the rear right side. There is evidence in the record that the skid marks were 25 or 30 feet on Laurel Street, and the defendant in effect admitted he was travelling 30 miles an hour when he testified he was travel-ling ‘not in excess’ of 30 miles per hour, and did skid to avoid striking plaintiffs’ car which was mid-way in the intersection.
“Plaintiff rightfully entered the intersection and was struck only because defendant was exceeding the speed limit at 30 miles an hour, and was not keeping a lookout.
“There is some evidence that defendant had been drinking, and the Court is satisfied that he did have a drink or two under the circumstances that he had just been to some friend’s to get a Christmas present, and it was the day before Christmas, and witnesses whose testimony has not been impeached smelled liquor on his breath. Furthermore, on Laurel Street, about 150 feet away from the intersection of Upperline is a sign, ‘Slow Down Playground Near’, and therefore the defendant should have travelled not more than 10 to 15 miles an hour because of the playground and the possible presence of children.
“Under the circumstances, I am compelled to hold that the accident was due solely and only to the negligence of the defendant in travelling at an excessive rate of speed, and not giving the plaintiffs’ car the right-of-way which it was entitled to by virtue of its proper pre-emption of the intersection.
“With respect to quantum concerning the $599.00 damages to the automobile, the Court is not satisfied that proper proof was made that the repairs, if actually made, were all due to the accident. The car was a 1949 Plymouth purchased by the plaintiff in 1951. Therefore, it was four years old and second-hand; and it cost plaintiffs about $1200.00, having purchased it in 1951, and he operated it himself for a year or so prior to the accident in ’52, So the car was every bit of four years old. It is not sufficient for a mechanic to come into court and say I examined a car which was damaged in an accident and I repaired all these things without some more definite proof that all the repairs resulted either directly or indirectly from the accident, and did not exist because of ordinary wear and tear or abuse prior to the accident. So under the circumstances, I shall allow $300.00 damages for the automobile.
“With respect to the personal injuries, the wife had minor bruises, and has no residual injuries; her disability lasting no more than a week or so. Her husband had a scar on his forehead, and some stitches were taken, but except for a slight indentation there is no permanent ugly disfigurement. Under the circumstances, I will allow $200.00 to the husband and $100.-00 to the wife, plus $66.00 medical bills. The amount of recovery for personal injuries probably should be a little higher, but considering that the defendant is impecunious without insurance ; earns $60.00 a week, and has a wife and two stepchildren to support, and has a home that is heavily mortgaged, I have taken into consideration his inability to pay and have fixed the damages at considerably less than ordinarily they should be.
“Accordingly, there will be judgment condemning the defendant to pay to the husband $500.00, of which $300.00 is damages to the car and $200.00 personal injuries, plus $66.00 medical bill, and $100.00 to the wife for her personal injuries.”

The District Judge, after correctly setting forth the extent of the physical injuries, said that “the amount of recovery for personal injuries probably should be a little higher,” but he made the awards quite low in view of the fact “that the defendant is ‘impecunious, without insurance'; earns $60 a week, and has a wife and two children to support.”

We are well aware of the fact that in Jackson v. Briede, 156 La. 573, 100 So. 722, 726, the Supreme Court, in fixing the amount of damages, took into consideration the ability of the defendant to pay saying that “the court should not impose a penalty in money, greater, perhaps, than the defendant can pay.”

We know too that that "rule has been applied many times since in Ory v. Bosio, La.App., 159 So. 138; Seither v. Poter, La.App., 194 So. 467; Hartman v. Aschaffenburg, La.App., 12 So.2d 282. See, also, Punitive Damages in Louisiana, Loyola Law Journal, Vol. 10, page 26.

We think, however, that in the case at bar the Judge, in attempting to temper justice with mercy, has leaned a little too far to the mercy side. The record convinces us that the amounts awarded for physical injuries should be increased. Accordingly, the amount awarded to Mrs. La-croix will be increased to $200 and that in favor of Mr. Lacroix to $300.

Plaintiff, John Lacroix, 'Contends that the amount allowed for repairs to his automobile is inadequate and that the record shows that although" the amount allowed was only $300, the actual cost amounted to $559.

In commenting on the damages to the car, the District Judge said that he was “not satisfied that proper proof was made that the repairs, if actually "made, were all due to the accident.” A detailed study of the items listed in the repair bill seems to us to justify the conclusion of the District Judge in this regard. Surely he was not manifestly in error. Accordingly we shall not increase the amount allowed for repairs to the automobile.

The judgment appealed from is amend-' ed so as to increase the award to Mrs. Florence Lacroix to $200 and the increase of" the amount awarded to Mr. John La-croix to $666, and as thus amended, the judgment is affirmed, defendant to pay all costs.

Amended and affirmed.

Supplemental Opinion

PER CURIAM

Through inadvertence we overlooked the fact that the appellee had filed no answer to the appeal’ and that by this fact we were powerless to increase the amount awarded. 'Our error resulted from the fact that the appellee in brief prayed for an increase in the amounts. Accordingly our decree is recalled and the judgment appealed from is affirmed.


author: REGAN, Judge.-

text:
    GENERAL FINANCE COMPANY OF LOUISIANA, Inc., v. The RIVERSIDE WAREHOUSES, Inc., et al.
    No. 20357.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied Feb. 20, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Prowell, Viosca & Reuter, Jones T. Pro-well, Robert R. Ramos, New Orleans, for plaintiff-appellant.
    Hammett & Bertel, Miazza & Drury and Ellis C. Irwin, New Orleans, for defendants-appellees.
   REGAN, Judge.-

The plaintiff, General Finance Company of Louisiana, Inc., as pledgee of negotiable Warehouse Receipt No. 2827, dated September 23,-1949, issued to Horace L.'Brig-nac (conducting his business under the trade name of Brignac Canning Company) by Riverside Warehouses, Inc., to secure the payment of a loan made by the plaintiff to Brignac on September 26, 1949, instituted this suit, against, the defendants, Riverside Warehouses, Inc., and its surety, American Motorists Insurance Company, endeavoring to recover the sum of $1,800-44, predicated upon the failure of the warehouse to deliver, on demand, “one Hundred Twenty-Eight Ctns. Shrimp” ' covered by, the warehouse receipt.

The defendants pleaded the exceptions of “vagueness” and “no caus.e or right of action” which were referred to, the merits and then answered generally denying the allegations of plaintiff’s petition.

From a judgment in favor of defendants dismissing plaintiff’s suit, it has prosecuted this appeal.

' The record reveals that when the plaintiff made demand upon the defendant,- Riverside Warehouses, Inc., on May 18, 1951, deliver the cartons of shrimp described in the warehouse receipt, the defendant failed to make delivery thereof for. the reason that an investigation disclosed that the contents of the cartons were sealed cans of water and not shrimp. Subsequently Brig-nac admitted perpetrating this fraud and has been subjected to' prosecution and imprisonment, so'we were informed in oral argument.

The face óf the receipt is delineated by three columns' respectively -headed by the words “Marks”, “Amounts” and “Description of Merchandise.” Appearing thereunder are two separate entries which read “48/5 oz, small wet shrimp (57) .Fifty 7 ctns.”, “48/5 oz medium wet shrimp (71) Seventy One ctns” with total shown “(128)” “One-Twenty-Eight ctns. Shrimp.”

Plaintiff, asserting its claim as the holder of the warehouse receipt for value, in good: faith, and in the usual course of business, contends that when demand was made upon the warehouse it was obligated to deliver the exact ‘ merchandise designated'by the receipt; and that the burden of proof for non-delivery rests upon the warehouseman.

' . The defendant warehouse, in opposition to the foregoing contention,' insists that it is, not liable for' damages resulting from 'Brignac’s fraud, i. e. the failure of the merchandise to correspond with 'the description in the receipt for the reason that the goods were described therein by a statement of marks and labels, and the case, therefore, falls within the exception set forth in Section 20 of the Uniform Warehouse Receipt Act, LSA-R.S. 54:20, which reads “ * * * If, however, the goods are described in a receipt merely by a statement of marks or labels upon them or upon packages containing them, or by a statement * * * that the packages containing the goods are said to contain goods of a certain kind, or by words of like purport, such statements, if true, shall not make liable the warehouseman issuing the receipt, although the goods are not of the kind which the marks or labels upon them indicate, or of the kind they were said to be by the depositor.”

This is one of two identical suits instituted by the plaintiff, General Finance Company of Louisiana, Inc., against the defendant, Riverside Warehouses, Inc., and its surety. A motion to consolidate these cases, in order to facilitate and expedite the trial thereof in the lower court, was filed by the plaintiff who admitted therein that the facts, issues and parties were identical. The only distinguishing characteristics being the number of the warehouse receipt, the monetary amount and number of cartons involved and the name of defendant’s surety.

The appeal in the other case was prosecuted to the Supreme Court and judgment was rendered therein prior to the trial of this case here. It is entitled, General Finance Co. of Louisiana, Inc., v. Riverside Warehouse, Inc., and Employers’ Liability Assur. Corp., 1955, 227 La. 270, 79 So.2d 305.

In that case the court, in affirming the judgment of the lower court dismissing plaintiff’s suit, expressed the opinion that the receipt substantially complied with the provisions of LSA-R.S. 54:20, where both the cans and the cartons in which they were contained were sealed and the warehouse receipt embodied description on commercial labels attached to cartons, warehouseman was not liable to the holder of the receipt when the contents of the cans were revealed to be water rather than shrimp.

It is our opinion that the ratio decedendi of that case fully encompasses the issues posed for our consideration in this case.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

McBRIDE, J., recused, takes no part.