author: SIMON, Justice. McCALEB, Justice

text:
      229 La. 293

    SUCCESSION of Sallie D. (Sarah D.) WILLIS, Kit Willis, Administrator v. Champ WILLIS et al. (Plaintiffs in Rule).
    No. 41845.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Vincent Hazleton, Alexandria, for plaintiff-appellant.
    ■ Charles A. Riddle, Jr., Marks ville, for appellee.
   SIMON, Justice.

On November 19, 1952, Kit Willis was duly appointed and on the same day qualified as the administrator of the Succession of Sallie D. Willis. On December 2, 1952, he filed his final account; and no opposition having been made thereto after its publication, on December 15, 1952, it was duly approved and homologated. No further proceedings were taken by interested parties until September 14, 1953, when on a motion filed by heirs called to said succession a rule nisi was issued ordering the administrator to show cause on September 24, 1953 why he should not file a true statement and account of his administration and why he should not produce his bank book in connection therewith, if he has one, showing the amount of funds collected and deposited by him, and, upon his failure to do so, to show why he should not be dismissed from office and condemned to pay statutory penalties oil the total amount collected and not deposited. On the return date of said rule, the administrator filed an exception of no cause and no right of action. He also petitioned the ‘court to be relieved and discharged of any further trust and responsibility as administrator of this succession and to have his bond can-celled and the surety thereon released.

In his petition to be discharged, the administrator alleged that he had filed a final account which, on December 15, 1952, was duly approved and homologated, and that he had accordingly paid all of the creditors’ claims and made proper disbursements to the heirs of the amounts due them respectively, annexing thereto all deposit slips, bank statements and cancelled checks. He further alleged that he had fully completed the administration of said estate, disposed of all effects coming into his hands as administrator, and that, therefore, no further administration was needed.

For reasons unrevealed by the record the exceptions of no right and no cause of action to the rale nisi were argued and submitted on September 24, 1953, and oil October 6, 1953, were reargued and resubmitted. It further appears in the minutes of the trial court that on January 12, 1954, for oral reasons assigned, the exception of no cause of action filed to the rule nisi was sustained; but we look in vain for a formal judgment sustaining said exception. It does not appear that any affirmative action was taken by the trial judge to the administrator’s petition seeking his discharge.

On January 20, 1954, the heirs of decedent’s estate filed a motion seeking the same relief as heretofore sought in their rule nisi. Thereupon, the court ordered the administrator to show cause on February 5, 1954, why he should not submit and file a true statement and account of his administration. The administrator again filed an exception of no right and no cause of action, which exception was overruled.

Upon trial of the rule nisi, on February 16, 1954, judgment was rendered in favor of plaintiffs in rule, ordering and directing the administrator to file a true statement and account of his administration and to produce his bank book, if he has one, showing the amount of funds collected and deposited by him, within ten days from the date of this judgment, or as provided by law. Upon denying the administrator’s motion for a new trial, the judgment so rendered was formally signed on March 15, 1954. On the same day the administrator moved for and obtained an order of appeal, which is now before us.

Appellant informs us that the transcript of appeal does not contain the note of evidence adduced at the trial of the rule nisi, which, through a misunderstanding on the part of the court reporter was destroyed by her before the transcription of her notes. It is our understanding that the court reporter was led by counsel for the' administrator to believe that the transcript of said notes would not be needed. It is difficult for us to conceive that any at-taché of the court would follow instructions or orders from any person other than the presiding judge of said court. We are further informed that the judge before-whom the testimony was adduced has since departed this life. For these reasons appellant requests that the case be remanded for retrial of the rule nisi in order that the testimony may be recorded and presented to us. We do not consider it necessary to determine the merits of appellant’s motion to remand, being convinced that appellee’s motion to- dismiss the appeal is well taken and should be sustained.

It is fundamental that all final judgments, disposing of the whole case on its merits, are appealable as a matter of right. This right, however, is regulated by law as to the effect to' be given such appeals, whether such judgments have been rendered after hearing or by default. Code of Practice Article 565. The right of an appeal is also granted by law from an interlocutory judgment, but this right of appeal lies only when such a judgment may cause irreparable injury. Code of Practice Article 566.

In the case of Benham, Ziegler & Co. v. Mouledoux, 175 La. 711, 144 So. 428, we dismissed the appeal taken therein from a judgment of the district court ordering the defendant to file a full and detailed accounting, holding that:

“* * * The ascertaining, therefore, of whether an accounting is due, is a preliminary matter, ascertainable before entering the real merits of the case — that is, before undertaking to ascertain what, if' anything, is due the one calling for the accounting.

“A judgment, rendered by a trial judge, ordering an accounting, whether signed by him or not, is not a final or definitive judgment, but is. an interlocutory one. Junek v. Hezeau, 12 La.Ann. 248; Succession of Carriere, 34 La.Ann. 1056; 1 C.J. pp. 610, 611, §§ 49 and 50. It is not, however, an interlocutory judgment, which may work irreparable injury. The error, if any, in ordering the accounting, is such a one as may be corrected by appeal, after the case is finally disposed of in the trial court. Succession of Carriere, supra.

“The reason why the law does not grant an appeal from such a judgment as the present is because it does not favor the bringing up of cases by fragments. Wolff v. McKinney, 21 La.Ann. 634.”

In the case of Three Way Finance Co. v. McDonald, 213 La. 504, 35 So.2d 31, we announced that the rule that an appeal is not allowed from an interlocutory decree unless it is one which may cause irreparable injury is based on the fact that the law does not favor the interrupting of judicial proceedings by appealing from such decrees. Also, see Painten v. Pilie, 198 La. 713, 4 So.2d 804; In re Canal Bank & Trust Co., 216 La. 410, 43 So.2d 777.

In the case at bar, to the end of determining the rights and interests of the alleged heirs of this estate, the court directed and ordered the administrator to file and render a full and accurate account of his administration, with all books and documents identified therewith. It follows without saying that the most solemn duty of an administrator is to render and submit to the heirs at law or other interested parties a thorough, detailed and complete statement of his administration so that the court to which it is submitted may judicially determine the respective rights of all parties concerned. When this has been accomplished, the judgment of the court then becomes final and thus appealable. On the other hand, an order directing and commanding the filing of an account is not a definitive judgment but purely a preliminary or interlocutory one. Manifestly, such an interlocutory decree ordering an administrator who enjoys the status of an officer of- the court to perform the duties prescribed by law can certainly work no irreparable injury to him, and no appeal lies therefrom.

Accordingly, for the reasons assigned, this appeal is dismissed and the case is remanded to the district court for such further proceedings not inconsistent with the views herein expressed-and as provided for by law.

PONDER, J., absent.

McCALEB, Justice

(concurring).

I am in accord with the dismissal of this appeal on the ground that the judgment ordering the accounting is an interlocutory decree which causes no irreparable injury. It is also clear that this court is without appellate jurisdiction as there is no amount in dispute. See Winsberg v. Winsberg, 229 La. 61, 85 So.2d 31.

However, since the order is unappealable, it is proper to dismiss the appeal absolutely on that ground as it would be vain and useless to transfer the case to the Court of Appeal.


source: Caselaw Access Project

author: FOURNET, Chief Justice.

license: Public Domain

text:
    229 La. 300
    STATE of Louisiana ex rel. Herbert W. MAITREJEAN v. Francis J. DEMAREST, Recorder of Mortgages for the Parish of Orleans and Graham & Graham.
    No. 41538.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Porteous & Johnson, New Orleans, for respondent and appellant.
    Ellis, Lancaster, Wright & Daly, Frank B. Ellis, James E. Wright, Jr., New Orleans, for relator and appellee.
   FOURNET, Chief Justice.

Graham and Graham, attorneys at law, having secured a judgment in the Parish of Orleans in favor of the relator, Herbert W. Maitrejean, against his wife, decreeing a separation from bed and board, with a dissolution of the community of acquets and gains, and ultimately a final divorce, instituted suit against relator in St. Tammany. Parish (where he resides) to recover the fees for their services in those proceedings, during .the pendency of which suit they filed, in' the mortgage records of Orleans Parish, a notice of lis pendens and a lien and privilegé affecting certain property of relator in Orleans Parish which was formerly a part of the .community and was received by relator in the settlement thereof; and they are now appealing from a judgment ordering the Recorder of Mortgages for the Parish of Orleans, on the petition of relator, to cancel the notice of lis pendens and the lien and privilege against the property.

The lien asserted by appellants is claimed by virtue of LSA-R.S. 9:5001, granting to attorneys at law “A special privilege * * * for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.”

Under a well recognized rule of construction, statutes in derogation of common rights, such as those creating liens and privileges, are to be strictly construed and are not to be extended by implication or through considerations of equity. American Creosote Works v. City of Natchitoches, 182 La. 641, 162 So. 206; see, also, American-La France & Foamite Industries, Inc., v. Town of Winnfield, 184 La. 1043, 168 So. 293, and cases therein cited; Boylan’s Detective Agency v. Brown, 157 La. 325, 102 So. 417. According to the plain language of LSA-R.S. 9:5001, the lien and privilege therein provided apply only to “judgments” and to the “property recovered thereby”; its provisions are therefore not available to the appellants, no property having been recovered by the judgments, obtained through their professional efforts on behalf of the relator. The property against which the appellants attempted to assert a lien belongs to the relator simply because it .belonged to the. community of. acquets and gains existing between him and his. wife, and fell to him in the parti-' tion of their effects which took place upon judgment of separation from bed and board, carrying with it dissolution of the community under the provisions of Article 1S5 LSA-Revised Civil Code of 1870; and the circumstance that in partitioning the assets it was through appellants’ efforts (as they claim) that relator received as his his share certain securities and properties particularly desired by him, neither adds to nor detracts from the fact that no property was recovered by the judgment.

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


author: McBride, judge.

text:
    Gertrude GARDNER, a copartnership composed of Glenn M. Gardner, Gertrude M. Gardner and Warren G. Gardner v. Bernard J. FONSECA.
    No. 20564.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.
    Titche & Titche, and 'Edward F. Weg-mann, New Orleans, for plaintiff and appellant.

      Byrnes & Wallace, New Orleans; for defendant aiid appellee.
   McBride, judge.

On February 20, 1953, Bernard J. Fon-seca, who owned the premises 7011 Broad Place, employed plaintiff, which is a co-partnership engaged in the business of real estate broker, to find a buyer for the property for $39,000 cash, or any other price that might subsequently be agreed upon. Defendant obligated himself to pay the broker the commission stipulated for in the contract in the event of a sale being effected during the term of six months from the date of the contract “or on the gross amount of any such agreement made within forty-five days after the expiration or termination of this contract, with anyone to whom said property has been quoted, during the term of this contract.”

About August 12, 1953, a Mrs. Baus, plaintiff’s saleslady, presented to defendant a written offer signed by Dr. J. W.. Davenport, Jr., to purchase the property for $30,000 cash; however, the offer- was conditioned upon the ability of Dr. Davenport to sell his own property, 1719 Napoleon Avenue. Defendant rejected this offer for the reason that the price offered was not suitable and for the further reason that he objected to the condition stipulated by Dr. Davenport. At no subsequent time whatever did the plaintiff submit any other offer or offers to defendant.

The contract of employment between plaintiff and defendant terminated by its own provisions on August 20, 1953, without plaintiff having found anyone ready, able and willing to purchase; the defendant would not renew the listing contract. On October 24, 1953, it appears that Dr. Davenport listed his property, 1719 Napoleon Avenue, for sale with plaintiff and also with Sullivan & Trenchard, Inc., another firm of realtors, and attempts were made by both agents to sell Dr. Davenport’s property. Mrs. Baus held open house on the property on Sundays in the hope of finding . ■ a purchaser, and Sullivan . & Trenchard, Inc., took other steps to dispose of the property. Be that as it .may, Dr. Davenport. made a sale of his. property through the efforts of Sullivan &■ Trenchard, Inc., who submitted the purchase offer on November 18,, 1953. Thereupon Dr. Davenport, without the intervention of plaintiff, made a written offer to defendant to purchase ,7011 Broad Street for $31,500 cash. Defendant agreed to sell to Dr. Davenport and the formal act of sale took place in the month of February 1954.

Notwithstanding that November 18, 1953, when the agreement of sale was entered into between Dr. Davenport and defendant, was a date subsequent to the expiration of plaintiff’s contract with defendant, plaintiff sued defendant for a commission of $1,360, plus $100 as .attorney’s fees, alleging that although defendant had rejected Dr. Davenport’s offer of August 12, 1953, further negotiations took place between the parties which led to the ultimate, sale of defendant’s property to Dr. Davenport. It is further averred.that the sale was a direct result of plaintiff’s efforts and was made to a purchaser who had been obtained by plaintiff during the term of employment. In answer to the suit defendant entered a general denial. After the case was heard on its merits, there was judgment dismissing the suit and from this judgment the plaintiff has appealed.

There was no collusion between defendant and Dr. Davenport to purposely withhold their agreement of sale until after the broker’s contract terminated. After the listing contract' expired on August 20, 1953, Dr. Davenport on one occasion during the first part of October called at defendant’s home and discussed the property with him. Defendant led Dr. Davenport at the time to believe that he was no longer interested in selling the property and Dr. Davenport states that he was very much disappointed. On a later occasion there was a chance meeting between defendant and Dr. Davenport in the downtown section of New Orleans, but the question of defendant’s property was not discussed at the time. On another occasion Dr. Davenport saw the defendant with members of his family in an automobile one evening and Dr. Davenport waved to defendant. The next contact between Dr. Davenport and defendant occurred about the middle portion of November when Dr. Davenport, who then expected to receive a bona fide offer from someone to purchase his property, called defendant on the telephone and inquired of defendant if he was still willing to sell 7011 Broad Place. Defendant informed Dr. Davenport that he would be willing to sell for $31,500 in cash. Dr. Davenport’s written offer to buy was made a few days later when the sale of his own property became a reality.

We are convinced that Dr. Davenport, after his visit to see defendant in the first part of October, despaired of being able to buy defendant’s property, and it would seem that Mrs. Baus, plaintiff’s saleslady, also believed that there was no likelihood of a sale being made by defendant to Dr. Davenport. The record shows that she, as well as Sullivan & Trenchard, Inc., the other agent, took Dr. Davenport on tours showing him other property which they had listed for sale and which they thought might interest him.

The listing contract provides that defendant would pay a commission in the event of a sale being effected during the term of six months from the date of the contract or on any sale made within forty-five days afterward to any one to whom plaintiff had quoted the property during the term of the contract. These provisions are clear and explicit and are the law between the parties. LSA-C.C. art. 1901. We are aware of no rule of equity, jurisprudence or logic under which the plaintiff would be entitled to recover a commission from defendant under the circumstances we find to exist in the case. No sale of defendant’s property was made during the initial six-month period of the contract or during the forty-five day period mentioned in the contract. Whatever negotiations there were which had been commenced by plaintiff came to an end at least during October when Dr. Davenport made the fruitless visit to defendant’s home. It was not until November when Dr. Davenport had hope of selling his own property that he again contacted the defendant and new negotiations began between them which ultimately led up to the sale. Counsel argue that plaintiff was the procuring cause of the sale, but according to our understanding of the meaning of the term, we do not think so. For the broker to be regarded as the procuring cause, the negotiations which eventually lead to the sale must be the result of some active effort on the part of the broker. Lehmann v. Howard, La.App., 49 So.2d 453. The only effort put forth by the broker in the instant case was to submit a purchase offer from one who was then not ready or able to buy defendant’s property, and after the offer was rejected by defendant, the whole matter seems to have been abandoned by plaintiff and defendant. We do not believe that tire listing contract contemplated that the real estate , agent would be entitled to a commission for producing- a prospective purchaser who is neither ready nor able to buy and who cannot and does not make a firm offer to purchase until a date after the contract with the real estate agent has expired.

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

Affirmed.


author: REGAN/ Judge. JANVIER, Judge

text:
    John McCRADY v. J. Folse ROY.
    No. 20409.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied March 5, 1956.
    Sydney J. Parlongue, New 'Orleans, for defendant-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Louis B. Claverie, New Orleans, for plaintiff-appellee.
   REGAN/ Judge.

The plaintiff, John McCrady, an artist, instituted this suit against the defendant, J. Folse Roy, endeavoring to recover the' sum of $550, the balance' due on an oral contract entered into on May 5, 1953, for the painting of an oil portrait of defendant’s wife.

The defendant answered admitting that he had entered into an oral contract with the plaintiff to paint his wife’s portrait in oil for the sum of $700; that he paid on account thereof the sum of $150 but refused to pay the balance since the portrait failed to depict “a life like likeness of his wife.”

From a judgment in favor of the plaintiff as prayed for the defendant has prosecuted this appeal.

The facts are relatively simple and, to a large extent, uncontroverted. Plaintiff, an artist of excellent repute, was engaged on or about May 5th, 1953, by the defendant, to paint an oil portrait of his wife, for which he was to be paid $700. The sum of $150 was paid on account thereof by the defendant before the artist commenced the portrait and thereafter plaintiff proceeded with the painting thereof, which extended over a period of several months. When the portrait was completed and hung in the living room of defendant’s home, he wrote plaintiff “My wife has prevailed upon me, after the advice of several of her friends who are very familiar with art work, not to accept the portrait that you painted of her. Among the reasons, her face is not properly portrayed, she looks much stouter and older than she actually is and for numerous other reasons, we feel that we must reject that .picture * *

The defendant’s case is predicated on the premise that the portrait fails to depict a “life like likeness of his wife.”

On the other hand, the plaintiff insists that “likenesses are interpretations” and that .this portrait reflects his interpretation as an artist of the: appearance of defendant’s wife.

The only question which we believe has been posed for our consideration is one of fact and that is whether the portrait reveals a reasonable likeness of defendant’s wife.

There is no evidence in the record that defendant’s rejection of the portrait was capricious or arbitrary nor was it suggested either in brief or in oral argument before us that there was any change in the physical appearance of defendant’s wife between the time that the portrait was painted and the trial in this court.

In the course of oral argument the portrait was unveiled and defendant’s wife was seated beside it in order to facilitate our evaluation of the likeness of the portrait to Mrs. Roy. Our reaction to the absence of “likeness” was both spontaneous and instantaneous. It is now our considered opinion that the portrait fails to depict a reasonable likeness of Mrs. Roy. She is an attractive woman of refined and relatively youthful appearance, possessed of fine regular features, good coloring and of a slight trim figure, whereas the portrait reveals a buxom, unattractive middleaged woman, lacking in refinement of appearance and possessed of coarse features.

We believe that the defendant properly rejected this portrait.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the defendant dismissing plaintiff’s suit at his cost.

Reversed.

JANVIER, Judge

(dissenting).

I regret that I find myself unable to agree with my associates.

In the first place, while I think that the portrait is not particularly pleasing, it appears to me to be a fairly good likeness of the defendant’s wife. Furthermore, we should not be called upon to act as experts in determining whether a portrait represents the original. It seems to me that such evidence should be given by experts.

Then, too, the record shows that the defendant accepted the portrait, had an expensive frame made for it and hung it in his residence for sometime before he was persuaded by his wife and friends that it should be rejected.

I respectfully dissent.


author: McBRIDE, Judge. REGAN, Judge

text:
    Succession of Robert M. WHITE.
    No. 20576.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied March 5, 1956.
    Writ of Certiorari Denied May 7, 1956.

      Philip Gensler, New Orleans, for W. Sommer Benedict, Public Administrator for the Parish of Orleans, appellant; W. Som-mer Benedict, Public Administrator, New Orleans, in pro. per., Kenneth C. Barranger and Philip P. Spencer, New Orleans, of counsel.
    Moise S. Steeg, Jr., and Walter F. Marcus, New Orleans, for White Estate, Inc., appellee.
   McBRIDE, Judge.

This is the second time this matter has been before us. We considered it before on a motion to dismiss the appeal. See 79 So.2d 755.

The initial question presented is'whether it was proven by competent evidence that Peter Joseph White, who is about 80 years of age and resides in Dublin, Ireland, ■ is the- nephew and sole and only heir at law of the decedent. The appeal was. taken by the Public Administrator for the Parish of Orleans from a judgment which recognizes Peter Joseph White as decedent’s sole heir and sends White Estate, Inc., into possession of the only remaining asset of the succession which is a certain fractional section of land situated in the Parish of Pla-quemines, as the assignee of Peter Joseph White (through Nicholas D. Olivier).

The evidence consists of the depositions of Peter Joseph White and three other persons who reside in Dublin, Ireland, taken under commissions, and the testimony of several witnesses residing in New Orleans taken in open court, as Well as the official certificate of decedent’s death, newspaper death notices, contemporary press articles and the record of decedent’s naturalization in 1901 by the Civil District Court for the Parish of Orleans.

.The mass of evidence shows that decedent was a native of Dublin, Ireland; we are satisfied that he was a bachelor who lived alone in a room at 825 Baronne Street, New Orleans; that he left no descendants and never adopted anyone. We gather from the record that the decedent at one or more times lived in Plaquemines Parish. Data taken, from the naturalization proceedings above alluded to reflects that the place and date of his birth was County Dublin, Ireland, December 22, 1848; he arrived in the United States at New Orleans in the year 1865; when naturalized he gave his residence as No. 437 Chartres Street.

Robert M. White died intestate in Hotel Dieu on July 20, 1928, and his succession was opened the very next day by an alleged creditor who sought to be appointed administratrix. Ultimately, letters of administration were issued to the public administrator on January 25, 1929.

Peter Jo.seph White “a citizen of Dublin, Irish Free State,” first appeared in these proceedings on October 30, 1931, when there was filed on his behalf a petition alleging that-he is decedent’s nephew and solé and only heir at law and praying fo'r recognition as such and for possession' of the effects constituting decedeiit’s estate. Although this , proceeding was- taken contradictorily with the public administrator and the attorney for absent heirs, nothing' further was done with reference thereto.

Peter Joseph White next made an appearance on November 5, 1948, as “heir of decedent” in opposition to an application which the public administrator had made for authority to sell the fractional section of land in Parish of Plaquemines at private sale. Oppositions were also filed by several other persons, but the issues raised were never tried and the succession lay dormant until White Estate, Inc., entered the proceedings in 1953 praying for possession of the land as the assignee of Peter Joseph White (through Nicholas D. Olivier).

The assignment by Peter Joseph White to Nicholas. D. Olivier and the one by Nicholas D. Olivier to White Estate, Inc., are a part of the evidence and after a close examination of them, we do not find that they are other than in good order. Peter Joseph White for a stated consideration assigned and transferred all of his right, title and interest in and to the Succession of Robert M. White to Nicholas D. Olivier, by act under private signature duly acknowledged before a Vice-Consul of the United States at Dublin, Ireland, on October 29, 1948. On May 10, 1951, by an instrument acknowledged before a local notary public, Nicholas D. Olivier in turn sold all of his right, title and interest in the Succession of Robert M. White to White Estate, Inc., which is a Delaware corporation authorized to do business in Louisiana. This former document came in for some discussion. Counsel for the public administrator say a discrepancy exists as between its date and the acknowledgement thereon, but we fail to find any such variance as is alluded to by counsel and we think they are in error.

The public administrator contends (1) that the heirship of Peter Joseph White may not be proven by hearsay evidence, (2) that even if such evidence is admissible it falls far short of proving his heirship, and (3) that since Peter Joseph White is a citizen ■of the Republic of Ireland, the provisions of Art. XTX, § 21, of the Constitution of Louisiana of 1921, LSA, render him incapable of owning or inheriting real prop-, erty situated within the state.

There is no dispute that under the law of Louisiana the burden is upon one claiming to be heir of a decedent to prove the fact. See C.P. art. 1003; Succession of Derigny, 128 La. 853, 55 So. 552; Succession of Townsend, 40 La.Ann. 66, 3 So. 488; Jones v. James, 12 La.App. 224, 125 So. 761.

Peter Joseph White is the son of Daniel Joseph White and Jane White, formerly O’Connell; he was born on September 18, 1876. His testimonial evidence is contained in two sets of depositions given before a Vice-Consul of the United States at Dublin in 1954 and 1955. The second depositions are in amplification of the first. Peter Joseph White stated that he had never seen his uncle, Robert M. White, and only learned from his father “as I was being reared up” that he had an uncle named Robert M. White who “went out to the United States as a young man.” His father corresponded with the uncle in America and his uncle used to send money to his father “about 30 or 40 pounds at a time.”

Peter Poseph White stated that he once sent a letter to his uncle informing him of the death of his father, but that he never received a reply. When asked if he could remember to what address the letter had been sent, Peter Joseph White replied: “I do. Number 12 Chartres Street, Parish of Plaquemines, New Orleans.”

Peter Joseph White tells of his having been notified by an attorney in the United States, whose name he could not recall, that Robert M. White had died in a hotel room in New Orleans in about 1908, but as he had not kept the letter he was unable to produce it. The words “in about 1908” must immediately attract one’s attention because it' is a well-established fact that Robert M. White died in the year 1928. However, in his second depositions Peter Joseph White changed hi's first statement by saying that the attorney had informed him that his uncle had died in 1928. He explained that' in answering the first interrogatories he became confused as between the year of his marriage and the year of his uncle’s death. We might say here that it is perfectly understandable how such confusion might arise in the mind of a man nearly 80 years of age under the stress of giving his testimony in a judicial proceeding. 'Nor does the statement that the attorney in America advised him that his uncle’s death had occurred in a hotel room assume any particular significance, because we believe it a most natural thing that a person who knew nothing of the nature of Hotel Dieu would assume that the institution was a hotel rather than a hospital.

According to Peter Joseph White, some 20 or 25 years ago a detective who “had some American papers” sought him at a former address in Dublin. Upon learning of this, White went to the police barracks and asked the detective “what he wanted with me.” The detective, after asking his name, wanted to know if there was anyone in America “belonging to” him. Peter Joseph White stated that he told the detective he had an uncle in America named Robert M. White whose address was Number 12 Chartres Street, Parish of Plaquemines, New Orleans, whereupon the detective told him “you are the man.”

The next thing that happened was his receipt of the American attorney’s letter containing the advice that Robert M. White had died in a hotel. In the letter the attorney “wanted me to put my things into his hands but I did not.” Peter Joseph White then went on to say that his wife worked for a man named Wagner who introduced him to his own solicitor who took the case, but that this solicitor, who has since died, “did not get to carry on very far.” Next came a visit from a solicitor named McGrath who “took up the case and it was going on that length of time, until there was an action started in America and he showed me slips out of the newspapers from America about documents and all the rest.” Peter Joseph White states that the attorney in America afterwards notified McGrath that the case was closed as “it would not be worth going on * * * and you can See where the expenses are going.”

Sometime during 1955 White Estate, Inc., sent an attorney-investigator from New Orleans to Dublin to conduct a search for some official records showing the kinship existing between Peter Joseph White and Robert M. White. This attorney testified that his quest for the official records was fruitless for the reason that the vital statistics in Dublin had been destroyed by fire. Peter Joseph White’s daughter-in-law, who testified under commission, made mention of the fact that the customhouse in Dublin where the records were kept burned down sometime late in the year 1954.

In his depositioiis Peter Joseph White gives the genealogy of the White family pertaining to his relationship with Robert M. White so far as he knew it from personal knowledge or as transmitted to him by his father. He was interrogated step by step concerning this relationship, and the substance ■ of his testimony is that Robert M. White was a child of Robert White and Ann Kelly, who had been married.but once and then to each other and who both predeceased Robert M. White. Besides Robert M.’White there was born of the marriage between Robert White and Ann Kelly, three other children, one a daughter bearing the name Ann White, and two sons named John White and Daniel Joseph White, the latter being the father of Peter Joseph White. Both Ann White and John White died prior to the death of Robert M. White, unmarried, intestate, and without descendants. Daniel Joseph White, who also predeceased Robert M. White, had been married but once and then’ to Jane O’Connell, this being the only marriage for each, from which two children were born, namely, Peter Joseph White and an unnamed child who died in infancy. •

According to his statements, Peter Joseph White is the nephew and sole heir at law of Robert M. White.

Patrick and Bernard White; sons of Peter Joseph White, also testified under commission before the Vice-Consul. Patrick remembered, the incident of his father receiving the letter from an attorney-in the United States; he thought this was sometime between 1928 and 1932; the letter conveyed information regarding the death of Robert M. White. Bernard White recalled that a police sergeant called to visit his father and of his father saying “some relation of his died in America!” Bernard White also said that his father received a letter from a solicitor in Dublin whose name was McGrath with reference to Robert M. White’s estate.

The above constitutes just about all of the pertinent evidence emanating from witnesses in Ireland, and if the circumstances were such that this evidence stood without corroboration, we, perhaps, would feel constrained to hold that it was insufficient to support the judgment of possession. But there is other evidence in the record which must be taken into consideration in de-_ termining the question of Peter Joseph White’s kinship and heirship.

Three reputable members of the legal profession, one an Associate' Justice of the Supreme Court of Louisiana, took the witness stand and testified that they hád been acquainted with Robert M. White and remembered him well. ' " ’ ■ *

Plenry E. Fallon, who commenced the practice of law in 1924, was the attorney who opened Robert M. White’s succession in 1928 on behalf of the creditor who sought to be appointed administratrix. Mr. Fallon stated that he became acquainted with Robert M. White through Josiah Gros, also an attorney, and that after Gros’ death “Old Man White” meaning Robert M. White, ■ who had been Gros’ client, paid about a dozen visits to-Fallon’s office. Fallon says: “He’d wait out in the waiting room. When I was finished he’d come in the office and ■ shoot the bull.” Fallon claims that in the course of their conversations Robert M. White mentioned to him that he had only one living relative, a nephew in Ireland, whose name was Peter Joseph White, the child of his predeceased brother. Fallon is certain he wrote a letter to the nephew, Peter Joseph White, in - Dublin informing him of.his uncle’s death with the expectation that he might be employed by Peter Joseph White to. represent him in the succession proceedings. The only reply he says he received was' a letter from a priest in Dublin informing him that Peter Joseph White'was ill as the result of excessive drinking.

Counsel for the public administrator express their disbelief that the decedent ever told Fallon of the existence of Peter Joseph White, or of any relative in Dublin, and they infer that Fallon learned of the existence of Peter Joseph White only from other sources and at a much later time.

A reading of his testimony shows that notwithstanding a rigorous cross-examination, Fallon steadfastly insisted that he knew the name of the decedent’s nephew because the decedent gave the information to him. We do not think it at all strange that Fallon was able to retain in his memory for a period of twenty-five.years the name Peter Joseph White, for he seems to b.e a man of discerning mind and keen memory. Among other things he was able to give a minute' and perfect description of the decedent, Robert M. White, even as to his fair complexion and the color of his eyes which Fallon said were blue like his.

The description Fallon gave of the decedent coincides in all material respects with the physical description of the decedent as given by Justice E. Howard Mc-Caleb, Jr., who was called as a witness by White Estate, Inc. Justice McCaleb recalled that decedent had a fair complexion and “light blue eyes.” '

There is absolutely nothing in the record that could cause us to . discount what Fallon said. To.-disregard his testimony would be to-say he was guilty of perjury. It would be most reasonable to believe that decedent, who was a friendly but, perhaps, lonely old man, confided to Fallon at some time or other during their conversations that he had the nephew in Ireland. That decedent was given to spending his' time in his lawyer’s office is not -only to be seen from the testimony of Fallon, but-the .fact also appears from the testimony of Justice McCaleb who said that Robert M. White “spent most of his days hanging around our office. * * * I guess throughout the years we always accumulate one or two clients that do that.” The decedent at one time had been a client of the law firm of McCaleb & McCaleb of which Justice McCaleb was then a member.'

John Kenny, a member of the local bar who was associated with Fallon in 1928, remembers several visits that Robert M. White made to the office to see Fallon. He stated that after Robert M. White died, the matter of his estate was discussed by Fal-lon and the late James Brittingham, the latter being the then attorney for the public administrator. Kenny was under the impression that the two áttorneys were attempting to contact White’s heir in Ireland. Fallon also made reference to Britting-ham .in his testimony and stated that Brit-tingham told him that he had written to Peter Joseph White but that the advice he received from Ireland was that White was “incapable.”

Turning our attention to the succession proceedings themselves, we find that on October 30, 1931, when he filed the petition for recognition as heir and for possession of the succession effects, Peter Joseph White was represented by the law firrn of McCaleb & McCaleb, as his “special agents and attorneys-in-fact, under and by: virtue of a-power of attorney executed in their, favor by petitioner, before B.' M. Hulley, Consul of the United States of' America at Dublin, Ireland, as will more fully and at large appear by the'said power of attorney which is annexed hereto * * It is a proven fact that the Peter Joseph White whose signature appears on the power of attorney is the same Peter Joseph White who made the assignment to Nicholas D. Olivier some seventeen years later. It was also shown that the Peter Joseph White who signed the deposition's in 1954 and 1955 is-the same person who had executed the power of attorney 'and the assignment. All this was testified to from the witness stand by a handwriting expert who made examination of all the documents.

Justice McCaleb remembered nothing of the petition, and we take if that it was the late Mr. E. Howard McCaleb who handled the matter,’ especially since it was he who made oath that all of the allegations of fact are true according to his knowledge and belief.

We notice that the petition contains these allegations:

“That petitioner,-Peter Joseph'White, is the sole and only son and heir of Daniel Joseph White and Jane O’Con-nell, both residing, prior to1 their respective deaths, in the City of Dublin, Ireland; that said Daniel Joseph White and his wife, Jane O’Connell, were married in the' year 1870 at Drogheda, Ireland, and that they lived in the District of Ballybough, Dublin, and later at Conliffe Avenue, Dublin, where petitioner’s said father, Daniel Joseph White, died over thirty years ago, and petitioner’s mother died at St. Vincent’s Hospital,; Dublin, in 1881. .That petitioner, Peter Joseph White, was born in Dublin on May 24th, 1875; that on the death of his said father and mother he was the sole surviving child and heir at law of his said father and mother, and inherits by representation of his said parents.
V.
That petitioner’s said father, Daniel Joseph White and the decedent, Robert Michael White, were brothers, and the said Robert Michael White at the time of .his death left your petitioner, Peter Joseph White, his nephew, as his sole and only heir at law.”

In that the allegations are so specific, we ■ are strongly inclined to the belief that when they were made, their author, Mr. McCaleb, had in his possession documentary proof in support thereof. It must be remembered that this was a time long--prior to the destruction 'of the customhouse at Dublin by fire. -

We are satisfied that the solicitor named McGrath,' who called at' the home of Peter Joseph White, was Mr. McCaleb’s correspondent in Dublin. We say this because Peter Joseph- White explained that Me-Grath “took, up the case” and after “it wasgoing on that length of time,” McGrath heard from an American lawyer to the effect that “the case was closed” as “it would not he worth going on any further.” This would all dovetail with the circumstances shown by the proceedings in the record. There was good and sufficient reason why Mr. McCaleb did not take -further steps after the petition for possession was 'filed, because it then appeared that the only asset that -belonged to decedent’s estate was an insignificant amount, of cash. Unquestionably Peter Joseph White was referring to a letter that Mr. McCaleb had written to McGrath at a time when it was not known by anyone interested in the succession that Robert M. White had left the fractional section of land which was later inventoried as -an asset of the succession.

The evidence discloses that in December 1928 a letter addressed to “Clerk of the Probate Court, New Orleans, Louisiana,” was sent by an attorney in Portland, Oregon, named Schwabe inquiring 'if there was “in the course of probation” an estate of one Robert M. White and for such information in connection therewith as could be given. Evidently this letter found its way into the hands of A. W. Newlin, the then public administrator, because Newlin wrote to Schwabe stating that he was contesting for the right to administer the succession and that the estate, consisting of swamp land in Plaquemines Parish, was “more or less a legal tangle.” Shortly thereafter Schwabe had the law firm of Terriberry, Young, Rault & Carroll of New Orleans investigate the succession on 'behalf of Peter Joseph White of Dublin, Ireland, and there followed over a period of about two years the passage of considerable correspondence 'between the Terriberry firm and the public administrator. The law firm was finally advised by the public administrator- “that in all probability the heirs will-have no interest in the estate, due to its insolvent condition.”

Mr. Bernard J. Fonseca, a member of the local bar, was the attorney who filed Peter Joseph White’s opposition to the proposed private sale- in November of 1948, and he related the circumstances under which the opposition was filed. His testimony is that the Consul of Ireland in New Orleans and a solicitor in Dublin, whose name was Cowan, directed him to represent Peter Joseph White “who was an heir of Robert M. White, and to take whatever steps as were necessary to protect Peter Joseph White’s interest.” Subsequently, the Consul requested the withdrawal of the opposition for the reason that Peter Joseph White had disposed of his interest, in the succession to Nicholas D. Olivier.

The thing that stands out and impresses us most is that it undoubtedly was at the instance of someone on this side of the Atlantic that Peter Joseph White was sought out as the nephew and heir of Robert M. White. It does not appear that he had knowledge of his uncle’s death in New Orleans or of the estate until the detective sought him out and he received the letter from the attorney in America.

But let us assume arguendo that Fallon’s testimony regarding his having written to White is pure fabrication and that the latter’s story of its receipt is a falsification, still there would remain to be answered the question of how Peter Joseph White in far-off Dublin could have learned anything of the death or of the estate.

It might be said by the public administrator that White only came forward after McGrath had advertised in the “Independent” for the next of kin of Robert M. White, but we believe the notice appeared in the newspaper long after White had been located by the detectives and the letter from America had arrived. White states that he told McGrath that he had already placed his case in the hands of the solicitor, meaning the one to whom White says he showed the letter from 'the American lawyer and who “did not get to carry on very far.” Whoever this solicitor might be, we believe it was he who communicated with Schwabe who was instrumental in having Terriberry, Young, Ráult & Carroll investigate the succession on White’s behalf. This was fully two, years prior to White’s entrusting the matter to McGrath or Mr. McCaleb’s filing the petition for possession under authority of the power of attorney.

The statement of' Peter Joseph White that he wrote a letter to his uncle at “Number 12 Chartres Street, Parish of Plaque-mines, New Orleans,” which address he claims he learned from his father who carried on a correspondence with- Robert M. White, warrants some discussion. While the address is meaningless, it assumes much significance in that Robert M. White lived on Chartres Street in 1901 and at one or more times he resided in the Parish of Plaquemines. If Peter Joseph White is an imposter as the public administrator seems to think, we wonder how and why he has knowledge of Chartres Street or of the Parish of Plaquemines which were former addresses of the decedent. At the time of his death Robert M. White lived in a room at 825 Baronne Street and apparently he had resided there for quite some time. The circumstance that Peter Joseph White states that he sent the letter to “Number 12 Chartres Street, Parish of Plaquemines, New Orleans” lends much, if not full, credence to his claim to being Robert M. White’s nephew.

Another feature of the case that should not be overlooked is that in 1954 and 1955 Peter Joseph White had no apparent incentive to answer the interrogatories untruthfully because he was then without any interest whatever in the succession, having disposed of all of his rights seven or eight years before without warranty. Peter Joseph White, when he gave his depositions, was an entirely disinterested witness.

We have read and reread the depositions and have sifted them and carefully analyzed their import in conjunction with the other evidence, and we are led to the conclusion that Peter Joseph White’s kinship has been adequately established. -It is true that our conclusion is founded on a series of circumstances, each one of which if taken by itself might possibly be explained away but when taken together constitute a cord not easily broken. The public administrator offered no affirmative evidence in rebuttal, but merely stands on his objections and resistance to the evidence offered by the claimant.

Counsel for the appellant argue strenuously that the most vital part of Fallon’s testimony, that is, his statements as to what the decedent told him, as well as portions of Peter Joseph White’s 'testimony bearing on his genealogy, is purely hearsay and as such is inadmissible in evidence.

We are well aware that the jurisprudence of this state has been consistently to the effect that statements made by a person since deceased is the rankest 'kind of hearsay and the weakest sort of evidence. But there is an exception to this general rule in cases which involve the question of a person’s pedigree. In ‘this type of case hearsay is admissible to prove descent and relationship, facts as to birth, marriage and death and the time when such events occurred. In Succession of Anderson, 176 La. 66, 145 So. 270, 274, the Supreme Court said:

“It is not questioned that a large part of the evidence, offered by plaintiff, touching the legitimate descent of Mrs. Delsa, is hearsay evidence. The hearsay evidence, however, consists of statements made by members of both the Schwartz and Anderson families, now deceased, relative to references to the marriage of Anderson and Miss Schwartz and to the descent of Mrs. Delsa, made prior to any controversy between the parties, or to the arising of a motive to make false statements. Hearsay evidence of this character to show family history or descent is admissible. The reason for its admissibility is the necessity of the occasion, for frequently proof cannot be made otherwise. Thus, in Jones’ Commentaries on Evidence (2d Ed.) vol. 3, § 1131, it is said:
“ ‘Pedigree, is the history of family descent, - which is transmitted from one generation to another by both oral and written declarations and ¡by tradition. Unless proved by hearsay evidence, not competent in general issues, it cannot in most instances be proved at all. * * * ’ ”

And in Succession of Marcour, 180 La. 130, 156 So. 198, 203, we find this language : •

“ * * * But an exception to the rule against the admission of hearsay testimony has been recognized in cases involving pedigree. In such cases hearsay is admissible to prove not only descent and relationship, but also facts as to birth, marriage, and death, and the date when the events occurred. The exception to the general rule is founded on the necessity which arises from the essentially perishable nature of the probative facts and the very limited number of persons who can be assumed to have either interest in or knowledge of ancient facts of such slight general importance and of a nature at once so exact and so trival. * * * »

See, also, In re Gray’s Succession, 201 La. 121, 9 So.2d 481.

The testimony of Peter Joseph White, it seems to us, establishes beyond question that his paternal grandparents and his aunts and uncles on the paternal side, as well as his parents, are all dead, having predeceased Robert M. White.

Of course, Peter Joseph White could not testify as to the marriage of his grandparents or that his father.and Robert M. White were actually their children. The record reflects that the decedent was born in 1848 and the marriage of his parents, therefore, was an event that took place more than one hundred years ago, and in view of the nonexistence of vital certificates showing the fact of the marriage, no court would place the impossible burden on Peter Joseph White of making actual proof thereof. Peter Joseph White’s grandparents were Robert White and Ann Kelly, who had «been married but once and then to each other and had four children, two of .whom were decedent and Peter Joseph White’s father. These facts were transmitted to Peter Joseph White by his father and this is a subject on which he is' qualified to testify under the well-established doctrine relating to the admission of proof of pedigree.

The fact is that no one save Peter Joseph White is now asserting himself to be the legal heir of the deceased, and the law is settled that where a person claiming an estate has shown he is the legal heir of its deceased proprietor, in the absence of proof that there are other heirs he will be considered as the sole heir. Samford v. Toadvine, 15 La.Ann. 170; De Gentile v. White Castle Lumber & Shingle Co., 130 La. 705, 58 So. 517.

Article XIX, § 21, of the Constitution of Louisiana of 1921, LSA, provides as follows :

“No alien who is ineligible to citizenship of the United States shall be permitted'or allowed or shall have any. right whatsoever to acquire by purchase, devise, inheritance, lease, assignment, gift or otherwise, or shall own or control, directly or indirectly, in his or her name, or through another interposed or by means of any corporation or association, or through ownership in his or her own name or through another of any stock or other form of security, any land or real property or any real rights or interests therein, including mortgage rights, of any kind or character whatsoever within the State of Louisiana. The Legislature may pass any additional legislation to carry the purpose of this section into effect.”

These constitutional provisions are similar to those contained in the • .so-called alien land laws which have been enacted by several of the states and designed for the purpose of preventing persons of other races, particularly orientals, from ever acquiring land, in the state. In brief .appellant’s counsel say this:

“ * * * Eligibility ■ for citizenship of an alien is provided for in the laws of the United States, 8 U.S.C.A. § 1422 et seq. Two observations are pertinent about that law: First, the law says (8 U.S.C.A. § 1422): ‘The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.’ (Italics ours.) Second, an •alien must also show, to be eligible for citizenship that he meets certain educational requirements, does not favor totalitarian form of government, is not a deserter from the armed forces, etc. Such factors as these are fundamentally more important to the Nation and State than any racial consideration.
“As the petitioner appellee has not challenged the constitutionality of such provisions, the application of the Louisiana provisions casts the burden on petitioner appellee to show compliance by proving that the heir through which it claims by mesne conveyance was eligible for United States ■citizenship.”

We know of no law passed by Congress or any treaty entered into by the United States -of America with the Republic of Eire providing that an Irish immigrant •would be ineligible to acquire United States •citizenship by the process of naturalization. But, be that as it,may, the Congress has now extended the privilege of naturaliza■tion to persons of all races. June 27, 19S2, c. 477, Title III, ch. 2, § 311, 66 §tat. 239, ■8 U.S.C.A. § 1422. ■ , ■ .

If Peter Joseph White would be ineligible to become a naturalized citizen ■of this country because of a reason other •than race or nationality, such would be an •affirmatiye defense which ¡must be specially pleaded and proven. No ,burden rested on .appellee to prove a negative fact.

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

Affirmed.

REGAN, Judge

(dissenting)..

In my opinion the proof of heirship is predicated upon “assumptions” and “presumptions” and not on fact. The sort of evidence adduced. in this case could, by analogy, be used to prove the author’s relationship with Adam'and’Eve.

I respectfully. dissent.


author: JANVIER, Judge.

text:
    Ralph TODD, Jr. v. SUNNYLAND CONTRACTING CO., Inc., et al.
    No. 20595.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied March 5, 1956.

      M. C. Scharíf and A. J. Marciante, New Orleans, for plaintiff-appellee.
    Duke, Porterie & Davison, New Orleans, Gravel, Humphries, Sheffield & Mansour, Alexandria, for defendants-appellants.
   JANVIER, Judge.

Defendants, Sunnyland Contracting Co., Inc., the employer, and Coal Operators Casualty Company, the workmen’s compensation insurance carrier of the said employer, appealed suspensively and de-volutively from a judgment of the Twenty-fifth Judicial District Court for the Parish of Plaquemines awarding $30 per week for total, permanent disability to the plaintiff, Ralph Todd, Jr. Plaintiff answered the appeal, praying that the award in his favor be increased by the allowance of penalties and attorney’s fees'.because of the alleged arbitrary and capricious refusal of the defendants to offer to make timely payments of weekly compensation.

Plaintiff, at the time of the accident which caused his injuries, was “a derrick man” in the employ of the Sunnyland Contracting Co., Inc., and it is conceded that the said employer was engaged in a hazardous business — ;the drilling of wells— and that Todd’s work brought him into contact with hazardous features of the business of his employer.

On July 28, 1953, at about ten o’clock in the morning, the ends of Todd’s index and middle fingers of his right hand were mashed by a.large pipe. He is righthand-ed. It was necessary that the end phalanges and about one-half of the middle phalanges of each of these two fingers be surgically amputated, with the result that the plaintiff has remaining of his right hand thi thumb and the ring and the little finger which were in no way injured and about one-half of each of the other two, that is, the middle and the index fingers of the right hand. It is shown that the ends of the stumps of these fingers have healed as well as is possible in such cases and that, except for the loss of about one and one-half phalanges of each of those two fingers and with such, disability as results, the hand is now restored as nearly as is possible to its former normal condition.

The question which is then presented is whether the plaintiff’s recovery should be based, on the specific injury, that is, the loss of one and one-half phalanges of each of the two fingers, o.r whether it should be based on the percentage of disability which results from the loss of these portions of these fingers, or whether the disability which has resulted is so great as to justify the conclusion that plaintiff is totally and permanently disabled from performing work of a nature substantially similar to that which he was performing at the time of the accident.

■ In an exhaustive opinión rendered by this Court many years ago, Wilson v. Union Indemnity Co., La.App., 150 So. 309, we held that when disability results from a specific injury, or from the loss of a specific member such as a -leg, a hand or a finger and the compensation which would be based on the disability is greater than would be the allowance for the loss of the specific member, the award should be based on the disability and not on the loss of the specific member. There has been no departure from this rule.

Since there can be no doubt from the testimony of both doctors, one on behalf of plaintiff and one on behalf of defendant, that the disability here is such that an award based even on partial disability would substantially exceed that which would be based on the specific loss of one and one-half phalanges of each of the two fingers, it follows that we must at once discard the possibility that an award should be based on specific loss of the phalanges of the two fingers.

The record shows that plaintiff, as a “derrick man”, was required to' be at the upper end of a well-drilling derrick about 150 feet high and there, by the use of a large clamp and large wrenches, to steer or guide extremely large and extraordinarily long pipes into position as they were raised with one end at the bottom and the other to the top of the derrick.

Plaintiff, in discussing his work as a derrick man, says that, as large pipes are pulled up by the derrick, he would have to force them into position and then tie them, and that in doing this he “would grasp the ends of the elevators and hold them until they could be ‘latched’ ” and that they would then hang on the elevators. He says that this operation requires considerable strength and ,a powerful grip and “if you fail to latch them it would pick them up four to six feet and drop them, and if anybody was under them you know what it would do.” He also said that in order to become a derrick man he had been a “rough neck for about a year” and that during that year he “would go up into the derrick and was learning” and that, after being a rough neck for about a year to learn to be a derrick man, a period of about three months was required.

■ Plaintiff also placed on the stand Robert Steele, who said that he had worked with Todd for about four months; that “Todd was working the derrick” while he, Steele, “was working on the floor.” He said that after the accident it was apparent to him that Todd could not do the same work which he had done before because

“he was latching elevators, and when it would come down it would hit the rotary and it didn’t seem he could latch the elevator. It was dangerous.”

A Mr. Taylor was placed on the witness stand by defendants for the purpose of Showing that the work such as Todd had been doing could be done by a man whose hand was at least as badly injured as was Todd’s. Taylor had lost all of the fingers of his left hand except the first joint of the index finger and the thumb. He was asked whether he could do the work of a derrick man and he said that he could and that he himself would frequently take the place of a derrick man and do that Work. He also said that he knew of three other men who worked on oil derricks after the loss of two or three fingers. He said that he had also known of a “derrick man with a thumb missing.” However, Mr. Taylor is now himself a 'foreman and under him there is “a derrick man that does the work up there.” He was asked whether, with his phalanges missing-, he could “grasp anything with that hand as you used to grasp,” and he answered: “I don’t guess I could.” And most significant of all his statements was one to the effect that

“I couldn’t compete very well with a man that does not have any fingers missing, * * * he is liable to do things and I .may have a 'harder time doing, and it may take me a longer time, but I will get it done.”

After the examination of the evidence concerning the details of' the work which a. derrick man must do, we reach the conclusion that a derrick man should be classified as a skilled laborer. We base this conclusion to some extent on. the fact that in Fruge v. Pacific Employers Ins. Co., 226 La. 530, 76 So.2d 719, the Supreme Court, after granting a writ of certiorari, affirmed a holding of the Court of Appeal for the First Circuit, La.App., 71 So.2d 625, to the effect that a rough neck is a skilled laborer. We have no difficulty in concluding that the duties of a derrick man require somewhat greater skill and experience than that required of a rough neck and therefore, as we have stated, conclude that a derrick man is a skilled laborer.

It is w.ell settled that where a skilled laborer sustains such injuries as prevent his doing substantially the same work which he was doing prior to the accident which caused the injury, he is to be compensated not on the basis of the specific loss and not on the basis of the difference between his earning capacity after the accident and his earning capacity before, but is to- be considered as totally and permanently disabled. Consequently, we conclude that the District Court was not in error in holding that the plaintiff was permanently and totally disabled 'and therefore entitled to the maximum compensation of $30 per week for 400 weeks subject, of course, to credit for payments already made. It thus becomes- necessary that we consider the contention of the plaintiff that he is entitled to recover in addition to compensation, penalties and'attorney’s fees as provided in LSA-R.S. 22:658 where an insurer capriciously, arbitrarily and without just cause fails to make timely payments.

Although plaintiff contends that he is entitled to a judgment for penalties.and attorney’s fees solidarity against the employer and the employer’s insurer, it is quite obvious that where such penalties are allowed they are allowed only as against the insurer and not as against the employer. The section of LSA-R.S. 22:658 which is relied-on very plainly provides that such recovery shall be had from the insurer and makes no reference whatever to the employer.

Defendant contends that whatever view we may take of the extent of the injuries of plaintiff, it must have been obvious from.the outset that he was entitled to compensation substantially greater than that which was paid him and also greater than that amount which was offered in settlement after the suit was filed.

It is shown that during the progress of the, litigation, defendant insurer offered to plaintiff $350.00 in settlement of such liability as might remain after the payment of such weekly amounts as had already been made. The position of the insurer is that at that time there was no way of determining just what the extent of the injury was and that, so far as could be seen by an. examination of plaintiff, he had merely lost one and one-half phalanges of each of two-fingers and would therefore be entitled, on-that basis to compensation of just about the-amount which was tendered.

It is true that later it became apparent that the extent of the injury to plaintiff’s-hand, even on the partial basis, would have-entitled him to a greater amount than was. offered, but at the time defendants had no-evidence which was conclusive on this point.

We think that it was neither arbitrary nor capricious in allowing the matter to go to-suit and in the suit contending that plaintiff should be compensated on the basis of the specific loss of certain portions of his fingers.

The claim for penalties and attorney’s fees was properly disallowed.

The judgment appealed from is affirmed at the cost of defendants-appellants.

Affirmed.


author: REGAN, Judge.

text:
    George P. BARNES v. William V. (Bill) BRYANT.
    No. 20427.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1956.
    Gilbert Bernstein' and Maurice R. Woulfe, New Orleans, 'for defendant-appellant.
    Malcolm L. de la Houssaye and Lewis R. Graham, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

The plaintiff, George P. Barnes, as lessor, instituted this suit against the defendant, William V. Bryant, whom he designated as a lessee, endeavoring to recover the-sum of $782.50 less $58.70 paid on account..thereof, representing an accrual of unpaid rent for “warehouse space” from .November 10, 1950, through November 9, 1951, at the rate of $18 per iiionth and from November 10, 1951, through October 9, 1952, at the-rate of $50 per month. The principal sum also includes a claim in the amount of $16.50 for “rust preventive oil” sold to the defendant.

Defendant answered and denied that he was ■ indebted', unto the plaintiff in any sum whatsoever for the reason that he had never .rented any. “warehouse, space” from the plaintiff and, therefore, the relationship of landlord and tenant had never existed..

From a judgment as prayed for, defendant has prosecuted this .appeal.

The record reveals that defendant had acquired a large amount of surplus army equipment, which he desired to dispose of “at auction.” Plaintiff possessed a large warehouse located on the Industrial Canal which was both suitable for storage and for conducting an auction. Plaintiff orally agreed to rent “the front part of the building” to defendant for the month beginning November 1C), 1950, for the sum of $18. The. auction occurred on November 21, 1950, and approximately seventy percent of the surplus equipment was sold, the balance was permitted by defendant to remain in .the warehouse and plaintiff acquiesced therein, although he orally continued to request the payment of the accrued rent until November 8, 1951, at which time he addressed a registered letter to the defendant, the pertinent portion of which reads:

“ * * * starting at your next rent due date your rent on- the space you occupy at my property on Industrial Canal will be $50.00 per month.
“I hope you will understand that higher costs and expensive watchman service makes this advance necessary.
“In our original agreement you agreed to furnish and install at my property two late type currently filled fire extinguishers and to date, you have not complied with this part of your agreement. ' * *

Defendant acknowledged receipt of the foregoing letter, but excuses himself for ignoring it by asserting that he thought plaintiff was “just on one of those sprees”of intoxication.

Despite the foregoing letter defendant continued to permit his merchandise to remain in plaintiff’s warehouse. ■ On August 21, 1952, plaintiff filed a rule for possession of the “warehouse space” occupied by the defendant’s merchandise and on August 28, 1952, defendant answered and' asserted “that he does not rent nor does he occupy any premises referred to in the rule as warehouse space on Industrial Canal near lake front in this City.”

On the same day,, as a result of the defendant’s answer, the rule for possession was dismissed at plaintiff’s- cost.

As paradoxical as it may appear, in view of the defendant’s answer tó the foregoing rule, the record reflects that much of defendant’s surplus equipment actually remained in plaintiff’s warehouse.

The only question posed for our consideration is one of fact and that is whether the initial oral contract of lease was subsequently tacitly reconducted in consequence of the inertia of the plaintiff and the defendant encompassing the period of November 10, 1950, through October 9, 1952.

Plaintiff concedes, that the initial lease was for a period of .one month, but he contends that where a lessee, without opposition from the lessor, continues in possession after the expiration of the lease, there is a tacit reconduction thereof by .the month and that, therefore, defendant is liable for the accrued rent from November 10, 1950, through October 9, 1952.

Defendant, on the other hand, in his endeavor to resist the demands of plaintiff, despite the evidence adduced herein, simply denies the foregoing contention of the plaintiff.

The trial judge was obviously of the opinion that the defendant remained in possession of the “warehouse space” for approximately twenty-two months after the expiration of the initial lease and, therefore, there existed a tacit reconduction thereof and our examination of the record fails to disclose any factual or legal error in his conclusion.

LSA-Civil Code Article 1817 reads:

“Silence and ínáctíon are also, under some circumstances, the means of showing an assent that creates an obligation; if, ,after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a'complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.”

See Lingle v. Wainwright, 215 La. 117, 39 So.2d 843; Classen v. Carroll, 18 La.Ann. 267; 1 Louisiana Law Review 439.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    George GUNTHER v. STRACHAN SHIPPING COMPANY.
    No. 20623.
    Court of Appeal of Louisiana. Orleans.
    Feb. 6, 1956.
    Rehearing Denied March 5, 1956.
    Writ of Certiorari Denied May 7, 1956.
    ■William H. McClendon, Jr., New Orleans, for defendant-appellant.
    Alvin J. Liska and Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, George Gunther, employed as a longshoreman, instituted this suit against the defendant, Strachan Shipping Company, his employer, endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks or, alternatively, $30 per week for a period of three hundred weeks, together with $1,000 for medical expenses, for total and permanent or “temporary and total” disability resulting from the effect of an abscess caused by a cut incurred above his left ankle on July 22, 1953, while he was in the act of carrying a four foot crosscut saw he stepped into a pool of oil causing him to slip and fall a distance of about five or six feet from the wharf to the deck of a vessel which was being loaded by employees of the defendant.

The defendant answered and admitted the occurrence of the accident and resulting injuries to plaintiff’s buttocks and thigh, but denied that plaintiff’s left leg was cut in the course thereof or that the abscessed condition of the left knee and complications emanating therefrom had any causal connection with the accident.

From a judgment awarding plaintiff compensation at the rate of $30 per week for a period of four hundred weeks and $1,000 to cover medical expenses, the defendant has prosecuted this appeal.

Plaintiff related that .on July 22, 1953, at about 2:30 P.M. he was “lashing tractors in the hole of a ship” and was instructed by his foreman to procure a four foot crosscut saw from the wharf; while returning therewith he stepped upon some oil causing him to slip and fall fropi the “cap” of the wharf to the deck of ,the ship, a distance of about six feet, resulting in injuries to his buttocks and thigh and more specifically in a cut above his left ankle caused when hisTeg fell upon the saw; in consequence of the fall ,he was rendered unconscious and after recovery therefrom he was instructed to visit the office of'defendant’s physician, Dr. John Andrews, whose secretary obtained from him a history of the accident and resulting injuries, including the “cut”, although he believed it to be of little significance at the time. Thereafter he was examined by Dr.- Andrews, who prescribed treatment' only for the injuries to his buttocks and thigh. Plaintiff Visited this physician’s office thirty-one times or until October 10, 1953, when he terminated the relationship for the reason that'he felt that he was not improving under the prescribed treatment. Plaintiff’s wife, from the inception of the accident, treated his leg which, as we have said, plaintiff considered of little significance, until September or October and about January 29, 1954, pain in this leg caused him to consult James D. Parkerson, defendant’s chief accountant, who telephoned Dr. Andrews, and it was arranged to have plaintiff visit the offices of Dr. Daniel C. Riordan, an orthopedist. He discovered the existence of an abscess on the “medial aspect” of plaintiff’s left leg slightly below the knee and recommended immediate treatment. Plaintiff then informed Parkerson that he desired to secure treatment from a physician of his choice, Dr. Hanckes Klein, a, diagnostician, whom he saw on January 30, 1954. Dr. Klein examined the plaintiff and then requested his uncle, Dr. J. L. Hanckes, to incise the abscess and under considerable pressure it exudated about one and one-half ounces of pus. Plaintiff was then informed, that he would probably develop a “sinus area” that would have to be surgically removed later. He visited these physicians eleven times and on March 23, 1954, he was confined to Mercy Hospital, where Dr. Ernest S. Merse, on March 24, 1954, surgically excised the sinus area of the leg where the abscess formerly existed. Plaintiff was hospitalized for one week, remained at home in bed for two weeks and refrained from any type of work for about three months. Up until his first visit to Dr. Klein, plaintiff continued to perform the usual duties of a longshoreman, although he related that his leg began to interfere with his work about the end of November or beginning of December, 1953. Following the operation plaintiff felt that he was unable to fully resume all of the activities of a longshoreman and also refrained therefrom in conformity with the advice of his doctor, who says that he will continue to examine plaintiff periodically. However, since his recovery from the operation plaintiff readily admits that he is able to perform at least one phase of the duties of a longshoreman and that is “carpentry work”, which is seasonal ' and represents . about one-tenth of the scope of a longshoreman’s activities on the river front.

While the defendant admits' the occurrence of the accident and the resulting injuries to plaintiff’s buttocks and thigh, it denies that plaintiff’s left leg was- “cut” in the course thereof. To substantiate this contention it offered in evidence the testimony of Dr. Andrews, who asserted .that on the day of the accident, when he examined plaintiff he did not observe nor was he informed of the existence of a “cut” on plaintiff’s ankle, although he was in an excellent position, during the course of the examination and subsequent treatment, to discover this injury if one existed.

The initial question of fact which the defendant has posed for our consideration is whether the plaintiff incurred “a cut on his leg on the day of the accident” and a careful examination of the record reveals no error in the trial court’s conclusion and it likewise convinces us that the evidence preponderates to the effect that such a “cut”, among other injuries, was incurred as a result of the accident.

The fundamental question of fact which the foregoing conclusion has now posed for our consideration is whether any medical correlation or causal connection exists between the trauma to the left leg or the “cut” sustained above plaintiff’s left ankle and the subsequent abscess which developed on the inside of his left knee about ten and one-half inches removed therefrom?

In order to substantiate, among other things, the causal connection between the. accident and resulting disability, two medical experts testified on behalf of the plaintiff, Doctors Klein and Merse.

Dr. Klein related that he has had “special training in physical diagnosis” which he teaches in the College of Medicine of Tulane University and he expressed the opinion that the cut caused by the saw or striking his leg on the wharf or deck of the ship could have caused the abscess and that an infection of this sort “could form any time from approximately * * * three weeks to six months.” In conclusion he was of the further opinion that the plaintiff could nbt resume the full rigorous duties of a longshoréman. • However, he planned to examine plaintiff periodically in order to determine the extent of his recovery.

Dr. Merse, a specialist with fourteen years experience in surgery, related that the first time that he saw the plaintiff- was when he performed the operation on March 24, 1954, and he was of the opinion that a “sinus tract” resulted from an infection of long standing and upon being interrogated “Now would you say that from the accident which the plaintiff in this case sustained on July 22nd, 1953, that six months later that this operation would be necessary * * * as a result of that trauma?”, he responded “Yes.”

Dr. John Andrews, a general practitioner specializing in industrial and compensation cases since 1945, testified on behalf of the defendant and related that on the day of the accident he examined the plaintiff and found that he “had a contusion of the upper one fifth of the right thigh and of the buttock with a hematoma formation”; that he did not discover any bruise or trauma in the vicinity of the left knee or a cut on the inside of the left leg two or three inches above the ankle, although he related that “we do not go through a complete physical examination on every patient by any manner or means, but whatever they tell us, we examine that part”; Dr. Andrews further testified that he did not see the plaintiff from .October 10, 1953 until April 21, 1954, which was a month after the operation, although, on January 29, 1954, he arranged to have Dr. Riordan examine him; that he again examined the plaintiff on November 26, 1954, which was about eight months after the operation, and he expressed the opinion that he had made an excellent recovery between that time and April 21, 1954 and that there was no reason, as of that date, why the plaintiff “could not do anything that he had ever done * * * he had lost nothing by the operation except some skin.” He further testified that if a cut or trauma was incurred by the plaintiff on the day of the accident that there exists no correlation between the accident of July 22, 1953 and the abscess which was discovered on January 29, 1954.

Dr. Riordan, 'a specialist in orthopedics, testified on behalf of defendant and related that he never treated plaintiff as a patient, but simply examined him before surgery on January 29, 1954, and thereafter on January 4, 1955. He was of the opinion at the time of the initial examination. that plaintiff had fully recovered from “his back injury and buttock injury, that he had a subcutaneous abscess of the left knee, the origin of which can not be determined at this time * * *. It is recommended that this abscess be incised and drained as soon as possible. * * * the patient stated that he was refusing to get treatment from Dr. Andrews * * Dr. Riordan related that following the operation he again examined the plaintiff and found that “he had a large scar on the medial aspect of his left leg just below the knee. That is in the area where the patient had a fluctuant abscess before. The scar is somewhat depressed and is slightly tender ****** the left calf measured a quarter of an inch larger than the right and it was my opinion, at that time, that he had a little edema from the slightly contracted scar * * * but that he will be able to do all types of work as he did before”, although Dr. Riordan admitted that he had only a “general idea of the nature of longshoremen’s work.” In response to the question “In your opinion, how long would it take for a condition like this to flare up, if it was an infection that had lain dormant ?”, he very pertinently elucidated “If this were an infection that resulted, as the patient said, from the puncture wound of the saw, it was such a long' period of time from the time that he was injured until the time that I saw him with the abscess on his leg, * * * my feeling is that it probably was a sterile abscess, and if it was a sterile abscess, it could develop very slowly over a long period of time, but if it was an infected abscess, and as far as I can see, I don’t know whether it was infected or not, because no report of a culture (of pus pressed from the abscess before surgery) has ever been given to me •* * * they usually develop rather rapidly.”

Dr. J. Kelly Stone, a respected specialist with thirty years experience in industrial surgery, also testified on behalf of the defendant. He related that he had never personally examined the plaintiff — only the medical records covering his operation and confinement in the Mercy Hospital. He expressed the opinion, after emphasizing that these records gave no previous history of the patient’s complaints, but were confined to the operation and the report of the pathologist, “that it could not be the result of the trauma that he received to his knee in July and then manifest an abscess in January”; although on cross-examination upon being interrogated “Now, if he had a sterile abscess that developed slowly, could he probably work and get along alright with it?”, he responded “Yes, he would be more apt, to, I think.” The foregoing answer of Dr. Stone was predicated upon information given to him that the plaintiff had worked continuously until the operation.

It will be recalled that Dr. Andrews, in the course of testifying for the defendant that the plaintiff could resume his occupation as a longshoreman, remarked that plaintiff “had lost nothing by the operation except some skin”, yet, Dr. Klein related that “some of the fluid came ■ from a bursal sac, so he had * * * more than just a plain abscess * * * the whole area down to that sac was cut out and tied off * * * jt was down to the periosteum and down to the bone.” Dr. Merse, who performed the surgery, stated that the preoperative diagnosis was “calcified area of leg.” The operation was performed while plaintiff was under a general anesthetic and consisted of a complete “excision of calcified area of leg * * *. There was preparation of calcified duct. The calcified duct was injected by means of methylene blue and there were multiple stones which were excised by means of sharp and blunt dissection. Bleeding points were controlled by means of chronic ties. An iodoform pack was placed in the area and the skin was closed by means of interrupted nylon.”

The laboratory report from the Department of Pathology of Mercy Hospital revealed “Skin and subcutaneous tissue showing sinus tract lined by granulation tissue, acute and chronic inflammation, fat necrosis, hemorrhage, fragments of crystalline material and foreign body giant cell reaction.”

In answering the fundamental question posed for our consideration affirmatively the trial court found as a fact that there was a causal connection between the accident and the subsequent abscess which developed on the medial .aspect of plaintiff’s left knee and a careful analysis of the record by us reveals no error in this conclusion.

In addition, to the expert opinion of the foregoing physicians there appears in the record the lay testimony of plaintiff’s wife and several fellow employees, which was principally offered in support of plaintiff’s contention that he is presently totally and permanently disabled, and it revealed the nature of plaintiff’s present work, i. e. “carpentry” and “pusher” which we understand is similar to a foreman. We have reviewed this testimony and find that it fully sustains the conclusions reached by plaintiff’s doctors that he is afflicted with an unstable knee, which is the ultimate effect of the injuries incurred by him on July 22, 1953, and which now militates against the full resumption of his former employment as a longshoreman.

In several relatively recent cases we have observed of all the witnesses who testified in the case, only one is in a position to know absolutely and definitely whether the plaintiff is able to resume his former employment and that is the plaintiff himself. The medical experts offered by both sides to enlighten the court were in a position to express opinions only. Whenever the opinions of the experts are in substantial conflict they are of little assistance to us, and, ■ therefore, we must predicate our decision on the record as a whole, giving much weight to the lay testimony, the facts and environmental characteristics of the-case,.'.as well as to the conflicting opinions of the medical experts. After a comprehensive analysis of all of the facts, including the honest testimony of plaintiff, a man of about thirty-five years of age, his excellent prior work record, his present enthusiasm for continuous employment, his economic necessity therefor, and the nature of the injuries incurred by him, we believe that he has sustained the' burden of proof and hás established with that certainty which the law requires, his claim of total and permanent disability to perform the arduous duties of a longshoreman, which occupation we believe falls within the' judicial category of skilled or, at least, semi-skilled labor. We are fully cognizant of the caution which we must exercise in a case of this nature in view of the conflicting medical opinion as to the future possibility or probability of a full recovery, however, if plaintiff’s condition should improve in the future, the defendant may avail itself of the provisions of the Workmen’s Compensation Law, LSA-R.S. 23:1021 et seq,, which affords it the right to reopen the case after the lapse of six months. Ladner v. Higgins, 1954, La.App., 71 So.2d 242; Dixon v. T. S. Moss Tie Co., 1954, La.App., 70 So.2d 763; Jones v. Atlantic & Gulf Stevedores, 1949, La.App., 38 So.2d 653.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: -THOMAS, Justice.

text:
    F. E. WATSON, Appellant, v. CITY OF NEW SMYRNA BEACH, a municipal corporation, Phillip L. Wright and Bruce B. Sweat, Appellees.
    Supreme Court of Florida. Division B.
    Feb. 10, 1956.
    Rehearing Denied March 5, 1956.
    Fred R. Brannon, Jr., New Smyrna Beach, for appellant.
    Hull, Landis, Graham & French, De Land, for appellee.
   -THOMAS, Justice.

This controversy involves a transaction between Mr. Phillip L. Wright and the City of New Smyrna Beach. The position of the appellee, Mr. Bruce B. Sweat, will de.velop as the facts are unfolded. The appellant is a taxpayer who sued and lost in the circuit court.

At all times relevant to the issues the individual appellees were partners in the construction business under the' firm name of “Sweat and Wright” and Mr. Sweat was a member of the city commission, except, of course, that in the transaction under attack Mr. Wright undertook to divorce himself from the firm and act alone.

At a meeting of the city commission Mr. Sweat offered a motion that bids be invited for the alteration and extension of the city’s power plant and the motion was unanimously carried. At the time designated in the notice three bids were received, the lowest one from “Sweat and Wright.” The other two bids were held invalid by the commission because one was accompanied by a personal check instead of the bond or certified or cashier’s check, required, and the other because it was not accompanied by any bond or check at all.

One of the commissioners then challenged the bid of “Sweat and Wright,” because one of the partners was a member of the commission. The city attorney advised the commission on the subject and this bid was rejected also.

New bids were invited and when they were received and tabulated, it was found that the lowest bidder was Parker Construction Company and the next lowest bidder was Mr. Wright who had bid in his own name. The electrical engineer, who was apparently acting as a technical adviser to the commission reported that the company submitting the lowest bid had not complied with the specifications because the bond accompanying its bid had been obtained from an agent in another city instead of a local agent. The city attorney advised the commission that the bid should be rejected for this reason, so the bid of Mr. Wright was unanimously accepted by the commissioners present. The city and Mr. Wright executed a contract and the work began.

The appellant charged that the bid of Mr. Wright was a subterfuge to avoid the inhibitions of the city charter, to which we will presently refer, and he buttressed the charge with allegations of facts we will now condense. A city commissioner and the bidder were, to repeat, engaged as partners in the general contracting business and maintained an office on land owned by them as cotenants. They jointly insured their employees under the Workmen’s Compensation Act, F.S.A. § 440.01 et seq., and owned jointly their tools and equipment. In performing the isolated contract under scrutiny, Mr. Wright was using the tools and equipment of “Sweat and Wright”, was operating under the occupation license issued to the partnership, and was using a truck and office owned by the firm.

The appellant asked the court to declare the contract void, to enjoin the city from disbursing moneys under it, and so on.

The allegations of the complaint relative to the oneness of “Sweat and Wright” were generally denied.

We think it is unnecessary to comment at length on the action rejecting the bid of Parker Construction Company on the ground that its bond was secured from an agent in another city. Evidently the company executing the bond was authorized to do business in New Smyrna Beach. It seems to us that the imposition of this restriction and the rejection of the bid for failure to comply with it were harsh when it is considered that the purpose of the bond was the protection of the city. Certainly the bond of Pacific National Fire Insurance 'Company was as valid secured through one agent as another. The remark is trite. But the result is important. The action cost the city $567, the difference between the bids of Parker Construction Company and Phillip L. Wright. This circumstance does not decide this case but it is one that lends emphasis to the conclusion we are to reach.

The circuit judge found that “no such legal interest of * * * -Brace B. Sweat” had been established “as to void” the contract and that the commission had “full knowledge of the relationship of the parties * * *.” The judge observed that he refrained “from expressing any opinion as to the propriety of the contract $ * * i>

These constructions of the law and the dealings of the commission were, in our opinion, entirely too narrow. In the first place, the fact that the commission was aware of the relationship between Mr. Sweat and Mr. Wright is, in a case of .this kind, entirely beside the point. Were such knowledge a criterion, dealings between a Commissioner and his firm would be sanctioned, despite the clear injunction of the charter, Section 11, Chapter 22408, Laws of Florida, Special Acts of 1943, the law of the state, Section 839.07, Florida Statutes 1953, and F.S.A., and the doctrine that such dealings are against public policy.

The doctrine and the pronouncement of that doctrine in the charter that an official may hot deal with himself, so to speak, are not based solely on the theory that such dealings evidence dishonesty. Let us assume that the partners had offered the lowest bid and were equipped and qualified to perform the contract to the point of perfection, still the contract would be void. So the “propriety” of the arrangement is very essential to a determination of the case.

We will assume that the men involved are of the highest character — nothing to the contrary appears in the record — yet it does not follow that the validity of the contract should be judged by the absence-of proof that Mr. Sweat had a “legal interest” in the contract.

Obviously it was originally intended that the partnership would compete because the first bid was submitted in the partnership name. Plainly a contract based on that bid would have been void. When this impediment was encountered, it was decided to dissolve the partnership, in effect, for the purpose of performing the one contract although for other purposes the work of the partnership doubtless was to continue.

We are of the opinion that such a separation for the clear purpose of circumvention was not proper and should not have been approved. Such procedure would amount to an inroad on a principle that the courts jealously guard and would set the precedent that partners could deal in a manner that would arouse the suspicion, however ill founded, that the official, if not being directly advantaged himself, would favor the man who in other operations was his associate. And to carry the thought a step further, as the work progressed, Mr. Sweat, as an official, might be obliged to pass one day upon work being done by a man who on other days was his close associate; and in the event of a dispute he would be handicapped in giving the city the benefit of his impartial judgment.

We have been strict in our decisions on such matters, witness Town of Boca Raton v. Raulerson, 108 Fla. 376, 146 So. 576; City of Stuart v. Green, 156 Fla. 551, 23 So.2d 831; Fruchtl v. Foley, Fla., 84 So.2d 906. Affirmance of this case would not harmonize with the views expressed in those cases.

Honest as may have been the motives of all concerned, mischief could result from such a situation, if not in this case, certainly in cases to follow were it to become a precedent.

The decree is reversed with directions to proceed in accordance with the views we have expressed.

Reversed.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.