author: AYRES, Justice.

text:
    Raymond B. OLIVER, Plaintiff-Appellant, v. SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD et al., Defendants-Appellees.
    No. 8529.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      Charles M. Peters, Malcolm E. Lafargue, Shreveport, for appellant.
    Booth, Lockard, Jack & Pleasant, John A. Dykes, Shreveport, for appellees.
   AYRES, Justice.

Plaintiff Oliver, in his capacity as a citizen and elector of the City of Shreveport, Caddo Parish, Louisiana, and as a member of the classified service of the Shreveport Fire Department, serving in the capacity as Assistant Chief Fire Inspector, under, pursuant to and in accordance with the Constitutional provisions and laws appertaining to such service, instituted this action against the Shreveport Municipal Fire and Police Civil Service Board and J. Earl Downs, Commissioner of Public Safety of the City of Shreveport, Louisiana, as petitioner’s appointing authority.

This action attacks as illegal, ultra vires and contrary to the provisions of the Louisiana Constitution, Art. 14 of Sec. 15.1, LSA, pertaining to ‘The Municipal Fire and Police Civil Service Law’ ”, the action of the defendant Board in adopting certain specified rule changes and particularly in abolishing the classification of Assistant Chief Fire Inspector, the position held by- petition, in that, for the reasons alleged,

(1) the abolition of plaintiff’s classification was for the purpose of enabling the appointing authority to name his own personnel in the Fire Prevention Bureau; in effect, to give this classification a new designation without any substantial change except the substitution of another employee in lieu of plaintiff, which purpose and action allegedly constitute an abolition of said classification without just cause or valid reason, in conflict with the aforesaid Constitutional provisions, particularly paragraph 8 thereof, for the purpose of discriminating against plaintiff ;

(2) if carried out said rule changes would deprive petitioner, without due process of law, of his employment, seniority rights and the benefits and rights of the aforesaid Civil Service Law;

(3) the Board adopted said rule changes in a secret session or sessions, contrary to the law requiring open public meetings, and without giving sufficient opportunity to the public or others directly affected or interested, such as petitioner, to be heard on the said proposed rule changes; and

(4) said rule changes were adopted without a public hearing, as required by law, and without giving an opportunity to any municipal officer, employee, private citizen or the State Examiner to show cause why they should not be adopted.

Petitioner further alleged that the appointing authority had begun to put into ef-feet the aforesaid rule changes, including the abolition of plaintiff’s classification; that he had exhausted his administrative remedies; that he is without adequate remedy at law, and, except for the relief sought in this action, he will suffer irreparable ■loss, injury and damage. Wherefore, petitioner alleged it was necessary that defendants be restrained and enjoined from implementing, carrying out or putting into effect the aforesaid rule changes, particularly the one pertaining to the abolition of his classification and employment, and that a mandatory injunction should be issued directing the defendant Board to strike from its rules, regulations and orders the aforesaid purported rule changes, and directing the reinstatement of the rules, regulations and orders existing prior to January 25, 1956, when the aforesaid rule ■changes were alleged to have been adopted.

'In accordance with plaintiff’s demands and pursuant to appropriate prayer, a temporary restraining order was issued, enjoining and restraining the Board and the .appointing authority' from implementing, ■carrying out or putting into effect the afore■said rule changes, including the one abolishing plaintiff’s classification as Assistant ■Chief Fire Inspector. Additionally, a rule nisi was issued and directed to said defendants, ordering them to show cause why a ■preliminary injunction should not issue pending a trial upon the merits, prohibiting, ■restraining and enjoining them from carrying out or putting into effect said rule ■changes.

To plaintiff’s petition defendants filed separate exceptions of no cause or right of .action. Pending a hearing on these exceptions, the temporary restraining order was, by agreement of counsel, maintained in full force and effect and the rule nisi was continued and refixed for trial. After trial of the exceptions, the court on March 9, 1956, sustained them so far as concerned the rule for a preliminary injunction and mandamus, as shown by the judgment dated March 19, 1956, the pertinent part of which reads as follows:

“It is ordered, adjudged and decreed that the exceptions of no cause and no right of action filed herein by defendants to the rule for a preliminary injunction and mandamus be and the same are hereby sustained.”

This judgment was signed only after plaintiff had filed and unsuccessfully urged a motion for new trial.

Following the rendition of the aforesaid judgment, defendants filed a motion to dissolve the temporary restraining order, which was sustained likewise on March 19, 1956, on which date the court also allowed an amended and supplemental petition which was filed after the sustaining of the exception. Whereupon, plaintiff moved for and was granted orders of devolutive appeal to this court, which appeal is now before us for disposition.

Simultaneously with the obtaining of orders of appeal, plaintiff gave notice in the district court of his intention to apply to the Supreme Court for writs of certiorari, mandamus and prohibition. In denying the application, the Supreme Court stated:

“Except in extraordinary circumstances, this court will not exercise its supervisory jurisdiction where the Court of Appeal has appellate jurisdiction of the cause, inasmuch as that court may, in aid of that appellate jurisdiction, issue writs of mandamus, prohibition, certiorari and all other needful writs. See Sec. 2 of Art. VII, Constitution of 1921."

Following this action, a similar application was made to this court, which was also denied because this court has no general supervisory jurisdiction over the lower court and granting of the application in this case did not come within the limited Constitutional authority of this court inasmuch as we deemed such action did not aid or pertain to our appellate jurisdiction.

Defendants have presented and urged before us a motion to dismiss plaintiff’s devolutive appeal, contending that such appeal represents an effort to appeal from an order dissolving a restraining order, from which no appeal is permitted. LSA-R.S. 13:4070. They are in error. The appeal is from a judgment rendered and signed sustaining an exception of no cause or right of action based on the contended insufficiency of the allegations of plaintiff’s petition as regards his demands for a preliminary injunction. We are not here concerned with the question of whether the temporary restraining order was properly or improperly dissolved. Counsel is correct that no appeal lies from such an action of the district court.

The primary issue and factor presented for determination is whether plaintiff’s petition alleges facts, which, if established, require, warrant and justify the issuance of a preliminary injunction. In determining this question, we find it unnecessary to decide the question as to whether plaintiff’s amended and supplemental petition may be considered by us in reaching our conclusions in view of our finding that the original petition discloses a cause of action.

It is elementary that all well-pleaded facts are considered as true in considering an exception of no cause or right of action. Ane v. Ane, 225 La. 222, 72 So.2d 485; Breaux v. Laird, 223 La. 446, 65 So.2d 907; Acadian Production Corp. of Louisiana v. Savanna Corp., 222 La. 617, 63 So.2d 141; Stacy v. Midstates Oil Corp., 214 La. 173, 36 So.2d 714; Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847.

Applicable to this case is also another well settled principle in our jurisprudence that a petition stating a cause of action as to any ground or portion of the demand will not be dismissed on an exception of no cause of action. Ane v. Ane, supra; Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45; Shaw v. Gwin, La.App., 154 So. 392, 396; Crescent Cigar & Tobacco Co. v. Mire, La.App., 145 So. 17; Dubach Mill Co. v. M. M. Carroll Lumber Co, Inc., 4 La.App. 207; Bannister v. City of Monroe, 4 La.App. 182.

It is also well established that the petition must be considered in its entirety in determining whether or not it states a cause of action. Weber v. H. G. Hill Stores, 210 La. 977, 29 So.2d 33; Crescent Cigar & Tobacco Co. v. Mire, supra; Thompson v. General Accident Fire & Life Assur. Corporation, Limited, of Perth, Scotland, 155 La. 31, 98 So. 746; Davis v. Arkansas Southern R. Co., 117 La. 320, 41 So. 587.

With these principles in mind, the conclusion is inescapable that plaintiff’s petition, in alleging facts hereinabove enumerated, states a cause of action which would, if true and if established by legal and sufficient evidence, warrant and justify the issuance of a preliminary injunction, in the absence of the issuance of which it is foreseeable that plaintiff would be subjected to irreparable injury in the abolition of his position, in the loss of his seniority rights, and in being deprived of the benefits of the provisions of the Civil Service Law applicable to all of those similarly situated and employed. Particularly and for example, paragraph 13(a) of the petition alleges that the abolition of plaintiff’s classification for the reasons allegedly advanced by the appointing authority constitutes an abolition of such classification without just cause or valid reason, in violation of the Constitutional provisions. In paragraph 13(c) it is alleged as a fact that the defendant Board should have reviewed and rejected the request of the appointing authority pertaining to the abolition of plaintiff’s aforesaid classification because the purpose for such request was to discriminate against petitioner. The authority for this is contained in the Constitution, Art. 14, Sec. 15.1, paragraph 14, which, in part, reads as follows:

“Whenever the board finds any change in the duties of any position in the classified service was brought about by the appointing authority to effect a reduction in the classification of any employee because of political, religious, or discriminatory reasons, or without just cause, it shall refuse to recognize any such action, and shall order the appointing authority to continue the employee in the position and class with all rights and privileges.” (Emphasis supplied.)

Plaintiff’s right to seek relief, as set forth in his original petition, is recognized in paragraph 36 of the aforesaid Art. 14, Sec. 15.1 of the Constitution, which, so far as pertinent, reads as follows:

“Nothing contained herein shall prevent any municipal officer, employee, or private citizen from taking legal action in the courts to enforce the provisions of this Section or of any rule, order, or other lawful action of the board.”

Plaintiff affirmatively asserts a right and interest in the rules and orders of the Board as existed prior to January 25, 1956, which he has alleged have not been lawfully changed nor superseded by subsequent orders. For the reasons alleged by him, he asserts the latter orders, rules and regulations are illegal and without force or effect. This charge of invalidity is predicated not only upon irregularities alleged to have existed in their adoption but upon a violation of the aforesaid Constitutional provisions in effecting a reduction in the classification of an employee by discrimination and without just cause.

Plaintiff was just as effectively denied a preliminary injunction by the sustaining of the exception as if such denial and refusal had been predicated upon a ruling of the court after a trial of a rule therefor. The plaintiff is, therefore, entitled to a devolutive appeal as a matter of right. LSA-R.S. 13:4070.

The exception should be and it is now overruled and the rule nisi is ordered reinstated on the docket of the district court, subject to assignment for hearing and trial, in accordance with law.

Accordingly, this cause is remanded to the First Judicial District Court in and for Caddo Parish, Louisiana, for further proceedings in accordance with law and consistent with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: AYRES, Judge.

license: Public Domain

text:
    Victor BUSSIE, Plaintiff-Appellant, v. SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD et al., Defendants-Appellees.
    No. 8530.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.
    Charles M. Peters, Malcolm E. Lafargue, Shreveport, for appellant.
    Booth, Lockard, Jack & Pleasant, John A. Dykes, Shreveport, for appellees.
   AYRES, Judge.

This action presents issues identical to those presented in Oliver v. Shreveport Municipal Fire and Police Civil Service Board, La.App., 88 So.2d 405, with which it was consolidated for the purpose of trial and this day decided. For the reasons therein assigned, the exception of no cause or right of action is overruled. The rule nisi is ordered reinstated upon the docket of the district court for assignment for hearing and trial thereon, and, accordingly, this cause is remanded to the First Judicial District Court in and for Caddo Parish, Louisiana, for further proceedings in accordance with law and consistent with the views herein expressed.

Reversed and remanded.


author: GLADNEY, Judge.

text:
    In re PAN AMERICAN LIFE INSURANCE COMPANY, Praying for Concursus.
    No. 8535.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      H. Alva Brumfield, Baton Rouge, for Scotts et al.
    Julian E. Bailes, Natchitoches, for Cor-kern et al.
    Solomon S. Goldman, New Orleans, for Pan American Life Ins. Co.
   GLADNEY, Judge.

The Pan American Life Insurance Company as a stake holder of proceeds of one of its policies issued July 27, 1926, upon the life of Ronald Eston Corkern for $2,000, designating Mrs. Viola M. Scott as beneficiary thereof, provoked this suit, a con-cursus under the provisions of LSA-R.S. 13:4816, to have legally settled the rights of opposing claimants. On a prior occasion we considered an appeal in this case involving a plea of prescription which this court determined favorably to the heirs of Mrs. Viola M. Scott, and the cause was remanded for further proceedings. See La.App., 75 So.2d 524. Following trial in the lower court on its merits, judgment was rendered awarding the proceeds of the policy to Mrs. Ruby Jones Corkern, widow of Ronald Eston Corkern, and her minor children. Wherefore this appeal.

The facts are not disputed and the issues presented concern legal entitlement to the amount on deposit. On August 27, 1929, Mrs. Viola M. Scott entered into a written contract with R. S. Corkern and his son, Ronald Eston Corkern, wherein Mrs. Scott agreed to loan money for the medical education of Ronald Eston Corkern up to the amount of $2,500, to be advanced over the four succeeding years. It was provided in the agreement, Ronald Eston Corkern:

“In order to secure a payment of the sums advanced to him, in the event of his death he will make the said Mrs. Viola M. Scott beneficiary in a policy of life insurance now carried by him in the sum of Two Thousand ($2,000.00) Dollars, in the Pan American Life Insurance Company, and he agrees that should it be necessary the said Mrs. Viola M. Scott shall have the right to advance any additional sum necessary to pay the premiums due on said policy of life insurance, and for such amounts expended by her he shall furnish his promissory note stipulating the same rate of interest and maturing at the same time as the notes above mentioned. Appearer Ronald Eston Cork-ern agrees, however, to keep the said insurance in force, to let the dividends accrue thereon and not accept anything from said insurance company that would decrease the cash or loan value of said insurance or otherwise reduce the same without the consent of the said Mrs. Viola M. Scott. Mrs. Scott agrees to reimburse his parents or closest heirs any amount she would receive in event of his death, in excess of amount loaned him.”

In conformity with the agreement Cork-ern wrote the Pan American Life Insurance Company enclosing the policy referred to requesting the beneficiary be changed to Mrs. Viola M. Scott, and directed that the policy be returned to the First National Bank of Oberlin, Louisiana, “with instructions to just hold in escrow as they have already been advised concerning this transaction.” Accompanying the letter properly executed was the regular form used by the insurer to designate a change of beneficiary. The form designating the new beneficiary reserved to the insured the right of revocation.

In the years which followed, Mrs. Scott advanced the sum of $2,300 and Corkern executed his five promissory notes totaling $2,300 dated August 26, 1929, September 8, 1930, September 1, 1932, May 1, 1933, and February 7, 1934, respectively, each bearing interest at the rate of 4%. Pursuant to the instruction the assurer forwarded the policy to the bank “to be held in escrow.” The First National Bank of Oberlin, perhaps some time during the years of the depression, became insolvent and was closed and placed in receivership. In response to an inquiry, the office of the comptroller of the currency which had supervised the affairs of the bank during its receivership reported that upon liquidation of the bank and under proper authority on January 30, 1940, all of the books, records and papers of the bank had been destroyed. It reported further that that office had been unable to find any reference to the policy in question.

Mrs. Viola M. Scott died on March 1, 1948, and Dr. Ronald Eston Corkern died February 20, 1953, without having designated another beneficiary. In probate proceedings which followed the deaths of said parties, the heirs of Mrs. Scott and the widow and heirs of Dr. Corkern were judicially recognized as such. Upon opening the bank box of Dr. Corkern after his death the policy was found. Mrs. Letitia Kent Bingham, who had acted as the doctor’s secretary since about 1940, testified that she knew nothing of the circumstances surrounding the policy, other than she had in the course of her duties paid the premium notices as they were received in her office. No other evidence was adduced to show how possession of the policy was obtained by Dr. Corkern.

The heirs of Mrs. Scott assert the policy was delivered to the First National Bank of Oberlin in fulfillment of Dr. Corkem’s obligation to secure payment of the loan and that upon its delivery to the bank with Mrs. Scott designated as beneficiary therein, the transaction either constituted a pledge or an assignment of the policy. They declare no payments were ever made upon the loan and, therefore, they are entitled to the proceeds due under the policy.

The claim of the surviving widow and minor children is based upon a provision of the policy providing that in the event the beneficiary should pre-decease the insured, in the absence of the designation of another beneficiary the policy would be payable to claimants as the widow and the sole and only heirs of the deceased. They deny the policy was pledged or assigned, it being argued that the policy was never actually delivered to nor did it remain in the possession of the pledgee.

None of the witnesses professed to firsthand knowledge that the obligation of Dr. Corkern was satisfied, nor, in truth, was anyone in a position to say how Dr. Corkern came into possession of the policy. The presumption is strong that his possession resulted from the liquidation of the affairs of the escrow agent, the First National Bank of Oberlin. Had Dr. Corkern, in fact, made any payments upon the obligation represented by the notes, it is reasonable to assume there would be residual evidence of such payments such as a written notation of the amount and date of remittance. Further, if he had fulfilled his obligation to Mrs. Scott it is logical to believe that he would have caused the beneficiary to be changed for the interest of his wife and family. Since none of these things was done, it is proper to deduce that someone employed in winding up the affairs of the bank simply handed to or otherwise delivered the policy to the insured.

Appellee also contends the long and continued possession of the insurance policy by Dr. Corkern suggests remission or payment of the debt. The burden of establishing this defense rests upon the party relying thereon. Code of Practice art. 329; LSA-Civil Code art. 2232; J. R. Watkins Company v. Calhoun, 1951, 219 La. 151, 52 So.2d 528; Pitre v. Bourg, La. App.1954, 77 So.2d 113. The amount loaned by Mrs. Scott was represented by five promissory notes which evince no inscriptions to indicate payments were made and these notes remained constantly among the effects of the creditor or her heirs. We have no difficulty in holding the obligation created by Ronald Eston Corkern has not been discharged by remission or payment.

Counsel for appellees, arguendo, concede the transaction by the assured may have constituted a pledge of the proceeds of the policy for the debt but deny that it constituted an assignment of the proceeds of the policy. It is urged there was no initial delivery of the thing sought to be pledged or if this did occur from delivery to and continued possession by the First National Bank of Oberlin, the pledge terminated when possession of the policy was restored to the pledgor. Our resolution of the facts and applicable legal principles would seem to destroy the effect of the distinction sought to be established between assignment and pledge. For, if we find there was an assignment of the policy title to its proceeds passed to Mrs. Scott and the subsequent possession of the policy by the assured was immaterial. Should we, on the other hand while assuming the existence of a pledge, conclude the possession of Dr. Corkern was precarious, we would be forced to hold the pledge was not invalidated merely by such precarious possession. Our impression is, and we so hold, that the several steps taken by Dr. Corkern in order to fully comply with the terms of his solemn agreement in legal contemplation constituted an assignment of the policy. Counsel cannot be permitted to argue the possession of the bank as escrow agent was not also the possession of Mrs. Scott, irrespective of her capacity of assignee or pledgee. Delivery of the policy to the bank had the same legal effect as if it had been placed in the hands of Mrs. Scott.

The insurance policy expressly authorizes an assignment of the policy subject to a prescribed notice, concerning which notice no question is raised in the instant case. According to Corpus Juris Secundum, the word “assignment” has a comprehensive meaning and in its most general sense is a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein, and is distinguished from a pledge in that an essential feature of an assignment is a transfer of the entire title, whereas an essential feature of the pledge is a transfer of possession. The same authority declares:

“Any language, however informal, if it shows the intention of the owner of the property or chose in action to transfer it, and sufficiently identifies the subject matter, will be sufficient to vest the property therein in the as-signee. Accordingly a valid assignment of a chose in action evidenced by a written instrument may be made by a separate writing, or the assignment of a fund may be in the form of an order on the debtor or holder thereof to pay the debt or fund to another person.”

See 6 C.J.S., Assignments, §§ 1 a, 2 b (8), 52. The foregoing legal principles are applicable in this state. See Strudwick Funeral Home, Inc., v. Liberty Industrial Life Insurance 'Company, Inc., La.App.1937, 176 So. 679, 681. The following articles of our LSA-Civil Code have particular significance :

No. 2642: “In the transfer of credits, rights or claims to a third person, the delivery takes place between the transferrer and the transferree by the giving of the title.”
No. 2643: “The transferree is only possessed, as it regards third persons, after notice has been given to the debt- or of the transfer having taken place.
“The transferee may nevertheless become possessed by the acceptance of the transfer by the debtor in an authentic act.”
No. 1909: “If the obligation be to deliver an object which is particularly specified, it is perfect by the mere consent of the parties. It renders the creditor the owner, and although it be not delivered to him, puts the thing at his risk from the date of the obligation, if the contract is one of those that purport a transfer.”

It was stressed in Strudwick Funeral Home, Inc., v. Liberty Industrial Life Insurance Company that while it is not necessary for an assignment to be expressed in any particular form it is vital that it reveal a positive intention on the part of the assignor to transfer title to the assignee. The instrument there under consideration was held not to constitute an assignment as it did not show the beneficiary intended to transfer title to the proceeds of an insurance policy to an undertaker. A similar conclusion was reached in Spremich v. Somerfield, La.App.1936, 166 So. 630. However, in Rosenblath v. Rice, La.App.1954, 73 So.2d 812, this court held that a letter by the beneficiary of a union death benefit fund delivered to a union official indicated an intention to assign an interest in the fund and, therefore, constituted an assignment in the amount stated.

The compliance of Corkem with the expressed terms of the agreement in requesting a change of beneficiary and directing that the policy be forwarded to the bank as escrow agent, in our opinion, manifested an intent and design to have the proceeds of the policy pay his undischarged obligation.

Notwithstanding the strong presumptions which arise from the undisputed facts, learned counsel for appellees argues the negation of the assignment. He says there is no language indicating a transfer of title to the policy. As above pointed out, intent is of the essence of an assignment. We think there can he little doubt Corkern intended the proceeds of the policy should be handed over in satisfaction of the obligation. Secondly, it is contended any intent to transfer title is inconsistent with the right to change the beneficiary (Mrs. Scott), which right was reserved to the assured. We do not agree this is so. The assured had the right to pay his debt at any time and then surely he was entitled to have the beneficiary changed and exercise all other rights of full ownership. On the other hand had he changed the beneficiary from Mrs. Scott to another prior to satisfying his obligation which stipulated the policy was to be security therefor, he would have been in bad faith and breached his contract. Furthermore, in such event no doubt the assurer would have required the consent of the named beneficiary who had a vested interest in the policy until the debt was paid. Finally, counsel declares that since the policy provides that should the named beneficiary die prior to the insured, the proceeds should be paid to the estate of the assured. Payment of the policy under this provision can be realized only if the assured or his heirs have a proprietary interest in the policy upon the death of the insured and would be applicable in the instant case only if the amount payable under the policy exceeded the amount of the assured’s obligation. It does not appear the assured or his heirs have any present interest as there is no excess over the debt.

With further consideration of the issue raised by counsel for appellees that the transaction reflects the confection of a pledge and not an assignment, the following articles of the LSA-Civil Code are relevant:

No. 3133: “The pledge is a contract by which one debtor gives something to his creditor as a security for his debt.”
No. 3152: “It is essential to the contract of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.”
No. 3153: “But this delivery is only necessary with respect to corporeal things; as to incorporeal rights, such as credits, which are given in pledge, the delivery is merely fictitious and symbolical.”
No. 3160: “When the thing given in pledge consists of a credit or instrument not negotiable, the pledge shall be complete as to all the world, as soon as the debtor of such pledged credit' or instrument shall have been notified in writing of the giving of such pledge.”
No. 3441: “Those who possess, not for themselves, but in the name of another, as farmers, depositaries and others who acknowledge an owner, can not acquire the legal possession, because, at the commencement of their possession, they had not the intention of possession for themselves but for another.”
No. 3556, par. 25: “Precarious.— That possession is called precarious, which one enjoys by the leave of another, and during his pleasure.
“The title which excludes the ownership, such as a lease, is also called precarious.”

It is well recognized that from the very nature of the transaction there arises a trust relationship between the pledgor and pledgee with attendant duties to protect the debt or the obligation and the collateral. The pledgee is presumed to act for the pledgor’s interest as well as his own, although their interests are not identical. The pledgor by his act of pledging, impliedly engages that he is the general owner of the property pledged, and cannot be heard to deny the equitable rights of the pledgee therein. 72 C.J.S., Pledges, §§ 21 b, 21 c, pp. 28, 29. The same authority further declares that the privilege of a pledgee may not be extinguished by an involuntary surrender of the pledged property by him. Id., § 27, p. 40.

In Conger v. City of New Orleans, 1880, 32 La.Ann. 1250, 1253, the Supreme Court said:

“Possession, though essential to the validity of the pledge, need not be always in the creditor. It is sufficient that the thing pledged be in the possession of one occupying ad hoc, the position of a trustee. The debtor himself may, in some cases, be considered as such trustee and be given possession of the thing by him pledged, provided his tenure be precarious and clearly for account of the creditor. The Louisiana doctrine is in perfect accord with both the common, the Roman and French laws.” (Citation of authorities omitted.)

It is clear that possession for the pledgee by a third party is equivalent to the possession of the thing by the pledgee. See Wells v. Dean, 1947, 211 La. 132, 29 So.2d 590; Davis v. Davis, La.App.1951, 50 So.2d 647. In Foote v. Sun Life Assurance Company of Canada, La.App.1937, 173 So. 477, the court expressly recognized that the property pledged may be placed in the hands even of the pledgor himself under certain conditions and the validity of the pledge may not be affected thereby.

We are of the firm opinion the facts herein presented disclose that the possession of the policy by Dr. Corkern was ad hoc, or in the nature of that of a trustee. Undoubtedly, he received possession of the policy without the knowledge or consent of the pledgee and his retention of the policy was for the account of the pledgee. In a recent case, Ducros v. Williams, 1950, 217 La. 418, 46 So.2d 612, the' Supreme Court recognized and enforced a pledge of a policy of insurance. The evidence sustained a finding contrary to the contention of the widow that the life policy taken out by the son naming the mother as beneficiary was pledged to the mother as security for the son’s note. The court determined payment of the amount of the policy to the mother had the effect of discharging the indebtedness on the note. There was no question as to actual possession of the policy by the pledgee. The facts were insufficient to indicate a clear intention by the insured to create an assignment.

The foregoing reasons impel us to hold that the policy and its proceeds were assigned to Mrs. Scott, and consequently belong to her heirs, the present claimants in this case.

The judgment from which appealed should be reversed and judgment rendered in favor of the heirs of Mrs. Viola M. Scott, recognizing their right to be paid the amount deposited by the assurer.

It is therefore ordered that the judgment from which appealed be and the same is hereby annulled, reversed and set aside.

It is further ordered, adjudged and decreed that there be judgment in favor of Mildred Scott, Mrs. Margaret Kitsch, Mrs. Sylvia Brumfield and Samuel M. Scott, and against Mrs. Ruby Jones Corkern, individually and as tutrix of her two minor children, Connie Sue Corkern and Ronald Eston Corkern, Jr., in the sum of $2,000, deposited by the Pan American Life Insurance Company, in the registry of the court.

It is further ordered that W. G. Stroud, clerk of court of Natchitoches Parish, Louisiana, pay over to Mildred Scott, Mrs. Margaret Kitsch, Mrs. Sylvia Brumfield and Samuel M. Scott, $2,000 deposited in the registry of the court by Pan American Life Insurance Company.

It is further ordered, adjudged and decreed that all costs of these proceedings be paid out of the funds deposited, with preference and priority over any and all persons, reserving, however, to Mildred Scott, Mrs. Margaret Kitsch, Mrs. Sylvia Brumfield and Samuel M. Scott their right to recover costs which have been paid out of the funds deposited, subject to and as provided for by LSA-R.S. 13:4816. All other costs are to be paid by appellees. Reversed and rendered.


text:
    Mrs. Earl Bostwick ATTAWAY et al., Plaintiffs-Appellees, v. Claude U. MELTON et al., Defendants-Appellants.
    No. 8503.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    On Application for Rehearing July 11, 1956.
    Malcolm E. Lafargue, Shreveport, for appellants.
    Love & Rigby, Shreveport, for appellees.
   AYRES, Judge.

Plaintiffs instituted this action to restrain defendants from interfering with plaintiffs in the exercise of their duties as officers and directors of the Sterling Service Life Insurance Company Funeral Association, Inc., and further to enjoin the defendants from exercising any of the functions of the officers and directors of said corporation, and to compel Claude U. Melton, one of the defendants, to deliver to one of plaintiffs, Mrs. Janice R. Haygood, all the secretarial records of said corporation, and to deliver unto Otis E. Pharr, the treasurer, all the treasurer’s records and funds of said corporation. Plaintiffs further prayed that the court declare null and void and of no effect purported elections of the several defendants and directors of said corporation in meetings purportedly held October 24, 1953, and December 19, 1953, and, further, that plaintiffs be decreed and recognized as the lawful officers and directors of said corporation; particularly that John E. Haygood be recognized and decreed president; Mrs. Joyce Pharr and Mrs. Willie E. Attaway, vice presidents; Mrs. Janice Ruth Hay-good, secretary, and Otis E. Pharr, treasurer. Plaintiffs appropriately prayed for a rule nisi directed to the defendants, ordering them to show cause why a preliminary injunction should not issue, and in due course that said preliminary injunction issue, and on trial of the merits that said injunction be perpetuated and made final.

Defendants answered plaintiffs’ demands, wherein they contended they were the true and lawful officers and directors of said Corporation and denied plaintiffs’ rights and claims thereto. In reconvention, defendants sought to recover of plaintiffs alleged damages in the sum of $10,000, for the loss and damage of business due to actions of plaintiffs and for the alleged libel and slander of respondents.

The trial court sustained an exception of no cause or right of action to defendants’ reconventional demands, and, after trial on the merits, rendered judgment recognizing and decreeing plaintiffs to be the de facto officers and directors of said corporation, decreeing null and void the proceedings of the purported meetings of the members of said corporation, wherein defendants claimed to have been elected officers and directors thereof. The defendants were further prohibited and enjoined from exercising any of the rights, privileges and functions of the officers and directors of said corporation and from interfering with the exercise by plaintiffs of such rights, duties and functions as officers and directors.

From the judgment thus rendered and signed, the defendants obtained and perfected, by the filing of an appropriate bond, a devolutive appeal to the Supreme Court. That Court, pursuant to LSA-R.S. 13:4441, transferred the appeal to this court. 229 La. 113, 85 So.2d 50. After the perfection of said appeal to the Supreme Court and after the lodging of the record therein, the plaintiffs and appellees filed therein a motion to dismiss the appeal, wherein it is alleged:

“I
“That the issues raised in the appeal herein have become moot and that, therefore, this appeal should be dismissed, under the authority of State ex rel. Davis v. Bankston, (1943) 202 La. 920, 13 So.2d 266.
“II
“That the term of office of the defendants and appellants herein, even if they were successful in this appeal, expired on February 15, 1954, as appears more fully from the Articles of Incorporation and Bylaws of the Association filed in evidence herein.
“III
“Movers further show that there has been an additional election of Directors by the Policyholders of said Association one year subsequent to February 15, 1954, on February 15, 1955, which Directors are still serving as the Directors of said Association, all of which appears more fully from the Minutes of the annual meeting of the Policyholders of Sterling Service Life Insurance Company, Funeral Association, Inc., held at the registered offices of the company at 904 Sprague Street, Shreveport, Caddo Parish, Louisiana, on February 15, 1955, at 6 P.M., certified as being true and correct by Otis E. Pharr, Secretary of said annual meeting of said Policyholders attached hereto and made a part hereof.”

Notwithstanding the filing of said motion and the presentation of plaintiffs’ statement relative thereto and their argument thereof in brief filed with the Supreme Court and refiled as their brief in this court, the defendants have permitted said motion to be submitted without dissent and without in any manner controverting the state of facts alleged therein. Wherefore, we assume that the facts set out in the motion are admitted to be the true facts of the case.

In State ex rel. Payne v. Irion, 163 La. 1019, 113 So. 360, it was held that the facts set out in a motion to dismiss an appeal may be taken as admitted where the motion is submitted without dissent from opposing counsel as to the state of facts alleged.

A situation, analogous to the one presented here, existed in State ex rel. Davis v. Bankston, 202 La. 920, 13 So.2d 266. There quo warranto proceedings were instituted g by 90 individuals claiming to be stockholders of Dairy Farmers’ Protective League, Inc. Sought to be removed from office were the president, vice president and secretary-treasurer of the corporation. The action was directed against the individuals holding said offices. It was alleged that said officers were elected according to a system of by-laws inconsistent with and contrary to the articles of incorporation. Wherefore, it was alleged that the defendants were elected unlawfully and were usurping the offices which they held. Accordingly, it was prayed that said offices be declared vacant and that a stockholders’ meeting be convened for the purpose of electing a board of directors, which board would have the authority to fill the vacancies to be so declared. There was judgment in the district court for the relators, declaring said offices vacant and ordering the calling of a meeting of the stockholders of the corporation for the purpose of electing a board of directors, who should in turn elect the officers of said corporation. From such judgment, the defendants perfected a suspensive appeal to the Court of Appeal and thereby retained possession of their offices pending the appeal. The Court of Appeal reversed the judgment of the district court and dismissed plaintiffs’ suit, but, after the refusal of rehearing, on application of relators, a writ of certiorari was granted by the Supreme Court. In the Supreme Court, after the assignment of the case for argument but before the date fixed therefor, relators filed a motion averring that the corporation had elected Malcolm Dougherty to succeed H. E. Bankston as president and F. S. Flutchinson to succeed C. P. Swartz as vice president, and that the two newly elected officers were then serving in the offices to which they were elected. Gates, the third defendant, however, was re-elected secretary-treasurer. .It was held that the action had abated as to all three of the defendants inasmuch as their term of office expired during the pendency of the suit.

This is precisely the situation shown to exist here. The term for which defendants contend they were elected has expired; new elections have been held, and plaintiffs were elected to the offices in contest for the subsequent term.

The appeal is ordered dismissed at the cost of the appellants for the reason the action has abated after the judgment of the district court was rendered and after the perfection of the appeal. Accordingly, the motion to dismiss is sustained and the appeal is dismissed.

Appeal dismissed.

On Application for Rehearing

Application for rehearing not considered by reason of failure to specify errors in accordance with provisions of Code of Practice and rules of this Court.


text:
    Jessie L. FREEMAN, Plaintiff-Appellee, v. Dr. Albert Irving CLARK, Defendant-Appellant.
    No. 8509.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    On Application for Rehearing July 11, 1956.

      Wilson, Abramson & Maroun, Jack H. Kaplan, Shreveport, for appellant.
    Malcolm E. Lafargue, Shreveport, for appellee.
   GLADNEY, Judge.

Jessie L. Freeman obtained a judgment for workmen’s compensation as for total and permanent disability from which defendant has appealed. In assigning error and denying liability, appellant contends that Freeman’s employment was not hazardous within contemplation of the Employers’ Liability Act, LSA-R.S. 23:1021 et seq., that he provoked the difficulty which led to his injury and, finally, that his disability resulted from intoxication.

Plaintiff on June 19, 1954, received a stab wound in the left arm with injury to the radial nerve, at which time he was acting in the course and scope of his employment as a salesman and collector. During the previous week plaintiff was shown the route assigned to him and received instruction in his duties connected with collections and the sale of merchandise consisting of clothing, ready-to-wear, bed spreads, towels, household appliances, television sets, and practically everything in the household line. In order to cover his route and supply his customers his employment required that he own a car or truck and plaintiff did so provide a truck which was owned by him and used to carry on his work. The goods tendered for sale were kept in defendant’s warehouse from which they were loaded into plaintiff’s truck and as sold, delivered direct to his customers. Freeman was remunerated with a commission of 30% of his sales. He received $75 for his first week’s employment but was informed by his employer he should thereafter realize $125 per week. His employer retained the right to discharge the employee at any time.

While being assigned his route and introduced to his customers he visited the house of Aggie Shelton, a Negro woman, to make a collection, and was advised by her to come back on the following Saturday, June 19th, and she would pay something on the account. . On the Saturday aforesaid Freeman was making his route in his truck for the purpose of collecting for prior sales and he started work early that morning. After working all day, about 8:00 o’clock in the evening he drove his truck to Aggie Shelton’s house. An argument concerning the promised payment ensued and Aggie Shelton left the porch where the discussion was taking place and went inside the house, which was dark. Plaintiff was holding in his hands his collection cards and a pencil when he was stabbed with a butcher knife through the screen door. Freeman then left and drove to his lodging and after receiving some first aid assistance from his neighbors, he was carried in an ambulance to a hospital where he remained until Monday afternoon under treatment by Dr. James W. Tucker.

Counsel for appellant earnestly argues the business of the defendant was not hazardous within the meaning of the Workmen’s Compensation Act, principally resting his contention on the holding of this court in Reagor v. First National Life Insurance Company, La.App.1946-1947, 28 So. 2d 527, 212 La. 789, 33 So.2d 521, Id., La. App., 85 So.2d 312. It is well settled by our jurisprudence that it is not the work performed by the particular employee which determines whether the employer is engaged in an occupation contemplated by the statute. Consideration of the duties of a particular employee are important only to the extent that those duties may indicate the nature of the business in which the master or the employer is engaged; for whatever may be the duties of the employee, the act has no application unless a trade, business or occupation of the employer brings him under it. The statute itself so provides: “Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation in the following hazardous trades, businesses and occupations”. LSA-R.S. 23:1035.

The very nature of defendant’s business involved the use of trucks in the delivery of merchandise and the instant employee was required to own and drive such a vehicle. The operation of the motor vehicle unquestionably was a necessary incident in the master’s business and, therefore, a hazardous feature which subjected defendant to the provisions of the Workmen’s Compensation Statute. The following decisions are authoritative and informative upon the announced principle:

Franz v. Sun Indemnity Company of New York, La.App.1942, 7 So.2d 636 and Richardson v. Crescent Forwarding & Transportation Company, Ltd., 1931, 17 La.App. 428, 135 So. 688; Haddad v. Commercial Motor Truck Company, 1920, 146 La. 897, 84 So. 197, 9 A.L.R. 1380; State v. Lanasa, 1922, 151 La. 706, 92 So. 306; Holland v. Continental Casualty Company, La.App. 1934, 155 So. 63; Crews v. Levitan Smart Shops, Inc., La.App.1937, 171 So. 608; Pierre v. Farm Development Corporation, La.App. 1949, 39 So.2d 154; Fields v. General Casualty Company of America, La.App.1948, 36 So.2d 843, affirmed 216 La. 940, 45 So.2d 85; Livingston v. Henry & Hall, La.App. 1952, 59 So.2d 892; Troquille v. Lacaze’s Estate, La.App.1952, 59 So.2d 505, Id., 1953, 222 La. 611, 63 So.2d 139; Edwards v. Louisiana Forestry Commission, 1952, 221 La. 818, 60 So.2d 449.

We think the Reagor case inapposite. Our opinion was reviewed by the Supreme Court and although the exception of no cause and no right of action sustained by the district court and this court was affirmed, the case was remanded by the Supreme Court to permit plaintiff to amend his petition to state a cause of action. See Reagor v. First National Life Insurance Company, 1946-1947, 212 La. 789, 33 So.2d 521, 522. In remanding the case, the Supreme Court declared:

“The insurance business is not one of the occupations designated as hazardous * * *. However, this does not mean that defendant is not amenable to the provisions of the Act if, as plaintiff claims, the business entails the operatiomof automobiles as a necessary incident thereto. Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380; provided, of course, that plaintiff is sometimes brought into contact with the hazardous features. Byas v. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.”

Thus in the Reagor case plaintiff’s petition did not allege that the use of an automobile was a necessary incident in the employer’s business, and for this reason it did not state a cause of action.

During the course of the trial the testimony of a number of witnesses was elicited by defendant for the purpose of proving Freeman’s intoxication at the time of injury. The defense was not made out as the record does hot present evidence that would warrant this court in finding the employee was under the influence of liquor at the time of his injury. The trial court held the defense not to have merit and we are of that same opinion.

The judge a quo likewise concluded that the evidence did not prove the employee’s willful intention to injure another. A review of the evidence consisting of the testimony of Frances Burgy, Aggie Shelton and plaintiff, the only eye witnesses to the affray, has convinced us that Aggie Shelton was not justified in inflicting the stab wound in plaintiff’s arm. The evidence conclusively shows that at the time plaintiff was stabbed a screen door was partially closed. Plaintiff had in one of his hands his collection cards and he was stabbed through the screen door. He denied having used words of a provocative character or employing physical force in the encounter. The testimony of Aggie Shelton and her daughter, Frances Burgy, is unsatisfactory because of conflicting statements and we think the trial judge did not err in discrediting the two witnesses and holding that the defense was not established. In Gross v. Great Atlantic & Pacific Tea Company, La.App.1946, 25 So.2d 837, the court held that mere verbal provocations, unless they are extremely serious, should not be considered in a compensation proceeding as the commencement of an affray resulting in injury to compensation claimant, but the court should look to the first physical act or the first threat of violence accompanied by apparent attempt to carry out the threat.

Appellant presents two further objections to the judgment from which the appeal was taken. The first of these relates to the amount of compensation awarded, and the second to the provision of the decree awarding plaintiff compensation during disability not to exceed 400 weeks.

Counsel for appellant argues the record does not indicate the amount of weekly earnings of Freeman, and, therefore, his judgment should be reduced to the minimum provided by the statute. We think this position is untenable. Plaintiff earned $75 during the week previous to his injury and he was assured that in the succeeding weeks of full employment he should earn about $125 per week. At the time of trial plaintiff had become separated from his employment with the defendant and had secured a job peddling small merchandise from which he made about $25 per week. Arguendo, even should we hold the two employments herein mentioned of plaintiff were similar, for as much as the evidence shows continuing disability, plaintiff would be entitled to 65% of the difference between his former weekly earnings and the earnings at the time of trial. LSA-R.S. 23:1221(3). This difference would be in excess of $30 per week, the maximum payment under the Workmen’s Compensation Act.

The attending physician, Dr. James W. Tucker, was the only medical expert testifying as to the extent and duration of the disability. Dr. Tucker somewhat reluctantly expressed the opinion Freeman’s disability would continue for not less than six months and about a year after the trial. Considered in its entirety the doctor’s testimony indicated an uncertain prognosis. 'Citing Delahoussaye v. D. M. Glazer & Company, Inc., La.App.1944, 185 So. 644 and Brown v. International Paper Company, La.App.1952, 58 So.2d 557, the district judge in his written reasons for judgment stated he did not feel that the medical testimony was sufficiently definite to enable an award for compensation for a specified number of weeks and accordingly awarded compensation during disability for the maximum period allowed. After a careful examination of the testimony of Dr. Tucker, we approve the ruling as being correct.

We affirm the judgment from which appealed, holding that the employment of plaintiff was hazardous within the meaning of the Workmen’s Compensation Act, that plaintiff did not forfeit his right to compensation by reason of intoxication or a willful intent to injure another, and that he is entitled to the maximum amount of compensation in accordance with the holding of the judgment from which appealed. All costs are assessed against defendant-appellant.

On Application for Rehearing.

Application for rehearing not considered by reason of failure to specify errors in accordance with provisions of Code of Practice and rules of this Court.


author: HARDY, Judge. PER CURIAM.

text:
    Mrs. Rhoda Dodge FREEMAN et al., Plaintiffs-Appellees, v. UNITED STATES CASUALTY COMPANY et al., Defendants-Appellants.
    No. 8500.
    Court of Appeal of Louisiana. Second Circuit.
    June 14, 1956.
    Rehearing Denied July 11, 1956.

      Cook, Clark, Egan, Yancey & King, and Benjamin C. King, Shreveport, for appellants.
    G. F. Thomas, Jr., Julian E. Bailes, Natchitoches, for appellees.
   HARDY, Judge.

This suit was instituted for the recovery of damages by the eight surviving brothers and sisters of one Clyde H. Dodge who was killed in an automobile accident in Natchitoches Parish on July 8, 1954. The defendants, Foremost Dairies, Incorporated, its employee and driver of the truck involved in the accident, James Davis, and its insurer, United States Casualty Company, have admitted liability, and the only issue which has been concerned in this case . involved the fixing of the quantum of damages. The decedent was a resident of the State of California and plaintiffs are residents of the states of California, Arizona and Oregon. The record is made up of depositions of the plaintiffs in answer to written interrogatories, copies of decedent’s bank statements, and a copy of the succession proceedings with relation to decedent’s estate. On this testimony and exhibits the matter was submitted to the district court, which rendered judgment in favor of plaintiffs totaling the sum of $31,990.91, from which judgment defendants have appealed. Plaintiffs have answered the appeal, seeking an increase in the amounts awarded to each.

There is no dispute as to the sum of $990.91 representing funeral expenses, which amount was apportioned among the eight plaintiffs. Eliminating this item from consideration, the judgment awarded one sister of decedent, Mrs. Rhoda Dodge Freeman, the sum of $10,000, and each of the other plaintiffs, brothers and sisters of decedent, the sum of $3,000. It is evident from the record and judgment that a uniform allowance of $3,000 was made to each of the plaintiffs in the nature of damages caused by mental anguish, pain and suffering resulting from the news of the tragic death of their brother and deprivation of his companionship, love and affection. The additional sum of $7,000 awarded to Mrs. Freeman, over and above the uniform allowance made to each of the other plaintiffs, unquestionably is the measure of damages fixed by the district judge for her loss of material benefits and substantial contributions to her support and maintenance by her deceased brother.

Defendants contend that the allowance of damages in the instant case is grossly excessive in view of the precedents established by our jurisprudence in similar cases. To the contrary plaintiffs assert that the awards are inadequate, particularly in view of the presently decreased purchasing power of the dollar.

In considering these opposed contentions we have carefully examined all cases in our jurisprudence instituted by brothers and sisters of decedents for the recovery of damages in cases of death resulting from negligence. However, before attempting an analysis of these cases, we think it well to point out certain principles which we regard as being too well established to require citation of authority. In the instant case there is no element of damages resulting from the pain and suffering of the decedent, inasmuch as his death was instantaneous. We think the right of these plaintiffs to recover for items of mental pain, suffering, anguish and shock, and for loss of love, affection and fraternal association, is no longer open to question. Nor can there be any basis for disagreement on the frequently iterated pronouncement that losses of this kind are not susceptible of exact measure in determination of monetary awards.

Counsel for defendants contend that the judge of the lower court erred in the award made in favor of Mrs. Rhoda Freeman because she was not entitled to recover anything upon the basis of allegedly uncertain and insufficiently proven contributions to her maintenance and support, which, at most, were mere gratuities. In support of this position counsel cite Eichorn v. New Orleans & C. R. Light & Power Co., 114 La. 712, 38 So. 526; Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 2 A.L. R.2d 442, and Bourg v. Brownell-Drews Lbr. Co., 120 La. 1009, 45 So. 972. Conced-edly counsel rely, by analogy, upon the application of the cited cases, which are authority for the rule that a child is not entitled to recover for loss of contributions by a parent after reaching the age of 21 years, Eichorn v. New Orleans & C. R. Light & Power Co., and Dowell v. Jowers, both cited supra, nor a parent entitled to recover for loss of contributions by a major son until the parent, as a foundation for such recovery, has established a legal right to support because of need. Bourg v. Brownell-Drews, supra. Counsel argue that the cited'cases:

“ * * * clearly indicate that unless the survivors have some legal right to support from the decedent, they have no right to recover loss of contributions in an action for wrongful death. There is no provision in Louisiana law whereby a sister could claim the right of support from her brother.”

While we agree with the legal principle set forth in the above cited cases, we cannot accord with the conclusion drawn and the sweeping, general application contended by learned counsel. We think counsel failed to make the obvious distinction between loss resulting from the recognition or enforcement of a legal obligation and an equally material and compensable loss resulting from the voluntary assumption and discharge of a natural obligation. To conclude that the loss of support or contribution to support of a wholly or partially dependent sister by a brother is not an element of damages resulting from the wrongful death of the brother because our law does not require such support, would be to lend approval to a code of conduct more commensurate with an animal existence than with the dignity of human relations. We are not here concerned with the legally enforceable obligations which flow from statutory provisions, but with the actual pecuniary and material loss which has been sustained as a natural consequence of a tortious act. In our opinion there is no reasonable support for the contention that this particular plaintiff is barred from the recovery of damages resulting from the loss of material benefits, in the nature of contributions to support and maintenance, of which she has been deprived by the wrongful death of her brother.

Inasmuch as we have embarked upon a consideration of the claim of the plaintiff, Mrs. Rhoda Dodge Freeman, we think it advisable to proceed with a discussion of the appropriate facts which form the basis for our conclusion as to the award in her favor.

At the time of death Clyde H. Dodge was fifty-three years of age, and had a life expectancy of 18.79 years; the plaintiff, Mrs. Rhoda Dodge Freeman, was sixty-two years of age, with a life expectancy of 12.86 years. The relationship between this sister and her brother appears, from the uncontroverted testimony in the record, to have been exceptionally close, affectionate and mutually helpful. Early in the year 1951 it was determined that Mrs. Freeman’s husband was affected with cancer of the throat, and, upon learning this distressing news, Mrs. Freeman immediately communicated with and turned for assistance and comfort to her brother, Clyde, who immediately proceeded to San Francisco, and removed his sister and her sick husband to his own home in Temple City, where he cared for them until Mr. Freeman’s death in the year 1952. After her husband’s death, Mrs. Freeman continued to make her home with her brother, where she was made most welcome and comfortable. The evidence shows that Clyde Dodge’s home, which he owned equally with an unmarried friend, one Thomas Shannon, who was killed in the same accident in which Clyde Dodge lost his life, was above the average in comfort, convenience and attractiveness, which factors were emphasized by a number of the witnesses. According to the uncontradicted testimony of Mrs. Freeman her brother established his own bank account as a joint account upon which she drew for her personal needs and comforts as well as for the maintenance "of the household. Additionally, Mrs. Freeman testified that on not infrequent occasions her brother would give her amounts in cash for vacation trips or for other purposes. Aside from the support of her brother Mrs. Ftee-man’s only established income was derived from a World War I veteran’s- widow’s pension which at the time of trial amounted to $50.40 per month. The picture of the close and affectionate relationship between this sister and her brother is unmarred by any implication of discord or difficulty of any kind, and implicit in the record before us is ample substantiation for the conclusion that the sister was dependent for the continuance of a pleasant, comfortable life upon the material support, as well as the intangible elements of love and affection, which were bestowed by her brother.

It is clear from the record that Mrs. Freeman is and has been for some years incapable of self support. She has no training, no experience which would fit her for work, and her age, of course, militates against the probability of securing remunerative work. Additionally, it is established that Mrs Freeman suffered serious injuries, resulting from an automobile accident, which would, in our opinion, be more than sufficient to physically disable her from undertaking any gainful occupation.

The deterioration in her living conditions as well as in the very nature and enjoyment of life which have occurred with respect to this plaintiff are graphically reflected by her own testimony. As administrator of the estate of her deceased brother Mrs. Freeman effected a sale of his interest in his home, and, upon delivery to the purchaser some five months after his death, she was forced to seek another domicile, which she found in a house trailer located in a trailer park in Jacumba, California. The change from a full and pleasant life in a comfortable home, which, it is testified, contained three bedrooms, two baths, living room, dining room, kitchen and a yard that appears to have been somewhat notable for a profusion of flowers, the raising of which provided a special interest for her brother, to the cramped and obviously unattractive circumstances of life in a trailer; the transition from a life of ease in which the necessities of food, shelter and clothing, as well as incidental conveniences, enjoyments and small luxuries were supplied, to dependence upon a pension allowance of $50.40 per month, which, at best, will provide in this day and time for very limited needs; the loss of a close companion, and the attendant evidences of love and affection, these are very real elements of damage which make dreary and empty the remaining years of her life. Cognizant of the fact that this loss cannot be adequately compensated in money, we are, nonetheless, constrained to the conclusion that the award made by the lower court, under the circumstances, is somewhat inadequate and should be increased to a sum more commensurate with the actual measure of the damage sustained.

Proceeding to a consideration of the awards made in favor of the seven remaining plaintiffs, which are based exclusively upon claims for loss of companionship, love and affection, and upon the suffering and mental anguish caused by the shock of their brother’s death, we have carefully considered the somewhat limited number of cases to be found in the jurisprudence of this state dealing with awards in favor of brothers and sisters, which cases we quote as follows: Underwood v. Gulf Refining Co., 128 La. 968, 55 So. 641; Thompson v. New Orleans Ry. & Light Co., 148 La. 698, 87 So. 716; Langenstein v. Rey-naud, 13 La.App. 272, 127 So. 764; Quaid v. Heymann, La.App., 150 So. 867; Hebert v. City of New Orleans, La.App., 163 So. 425; Chustz v. Negrotto, La.App., 165 So. 479; Pegg v. Toye Bros. Yellow Cab Co., La.App., 167 So. 896; Warnick v. Louisiana Highway Commission, La.App., 4 So.2d 607; and Cox v. Gross, La.App., 47 So.2d 102.

We briefly analyze what we regard as the relevant details of the opinions in the cases above cited, considering them in order as follows:

In the Underwood case [128 La. 968, 55 So. 652], decided by the Supreme Court in 1911, the opinion comments on the classification of recoverable damages as those resulting “from moral as well as material injury, from injury to feelings as well as to purse.” With reference to the relation between plaintiffs and their deceased brother the court made the following comment:

“The decedent was about 27 years of age at the time of the accident, and left neither wife nor child nor parent, and no brother or sister, other than plaintiffs, one of whom was of the same age (being a twin) and the other a few years younger. Neither of the plaintiffs was dependent on the decedent, nor had they seen much of him for several years prior to his death, though their relations were brotherly and affectionate, and the decedent had rendered some assistance to the younger brother in the completion of his education.”

Of the three justices concurring in the majority opinion in the above cited case,it appears that Mr. Justice Provosty, the author of the opinion, and Mr. Justice Land, though being of the opinion that “something more substantial might reasonably be allowed,” deferred to the opinion of Mr. Chief Justice Breaux that purely nominal damages, for mental suffering by plaintiffs should be allowed, and fixed the amount of the award in response to this item at $50 each, having already allowed $1,000 each by reason of the physical suffering of the decedent prior to death.

In the Thompson case [148 La. 698, 87 So. 718], decided by the Supreme Court in 1921, the following pertinent observation is quoted from the opinion:

“It is but recently that the law has been so amended as to allow brothers and sisters to recover in a case such as this. The amount of the recovery must necessarily be gauged' by the intimacy of the relation, association, and feeling of the plaintiffs toward the deceased. Here, the deceased lived in the house with the plaintiff brother, and the other plaintiff was a sister residing in another part of the state, whom she visited three or four times a year, principal^' during her vacation from work as an employe of a department store in the city of New Orleans. However, their relations were close and cordial, and -yve have every reason to assume that the sister’s tragic death caused them severe nervous shock and mental suffering which should be compensated as far as money can do so. Considering all features, we think a judgment of $1,000 a piece in favor of the plaintiffs would be just and reasonable.”

In the Langenstein case [13 La.App. 272, 127 So. 766], tried by the Orleans Court of Appeal in 1930, the court allowed $2,000 each to the plaintiffs in addition to funeral and medical expenses of the. décedent (who had a life expectancy of ten years) and summarized its reasons on this point as follows:

“As to the quantum of damages it appears that the deceased was 63 years of age, was in good health, and lived with his two sisters, who are the plaintiffs in this case, for a number of years; , that they received support from him and that he assisted in operating the small dairy until about six months before the time of his death, at which time the cows were not giving any milk and for that reason the dairy was temporarily closed. They testified that he was contributing $50 per month to their support. They further testified that he was a kind and loving brother who looked after and protected them.”

In the Quaid case [150 So. 868] decided by the Orleans Court in 1933, after fixing damages for pain and suffering of decedent prior to his death, the court made the following observation relevant to its consideration of the item of damages concerning loss of companionship, affection and support:

“In regard to the second item of damage claimed, which concerns itself with the loss of companionship, affection, and support, the record indicates that the deceased was employed as a checker at the American Sugar Refinery, earning about $100 per month; that of this amount he paid into a common fund administered by his sisters the sum of $30 per month, deceased and his four sisters forming part of one household, and his brother, Charles A. Quaid, being married and residing elsewhere with his family. The deceased was 59 years of age and his brother and sisters were each of them older than he was. Their precise ages .do not appear. Every member of the household was employed except Miss Mary Quaid, the blind sister, who, after having been a school teacher for 40 years, was retired on a pension of $48.75 per month. Miss Kate and Miss Margaret Quaid were also school teachers and employed in the public schools at a salary of $156 and $179 a month, respectively. Miss Nano L. Quaid worked in the public library at a salary of $90 a month. Each of the sisters had accumulated considerable savings, which had been invested in homestead stock, which, due to prevailing conditions, has greatly depreciated in value.
“The picture we get of the household excites our admiration: Four sisters and a brother, one of them blind, spending the evening of life together, all of them usefully employed, not excepting the blind sister, who, after a teaching career of 40 years, has retired and now devotes herself to the management of the household; a thrifty, intelligent, kindly group, mutually sustaining and helpful. The removal of the brother from this household was, we believe, a distinct and serious loss to the survivors, but, with the exception of the blind sister, we are not impressed with the claim for dependency. On the second item of damages claimed we will allow Mary Quaid $1,500, Kate Quaid, Nano L. Quaid, and Margaret Quaid, $1,000 each, and Charles A. Quaid, $250.”

The Hebert case [163 So. 427], decided by the Orleans Court in 1935, involved an action by a plaintiff for damages resulting from the death of her 63 year old sister. The court allowed $1,000 for the loss of companionship and observed:

“The record shows that the deceased had lived in New Orleans for approximately fifteen years and that plaintiff lived, so far as we can ascertain, in one of the country parishes. The sisters visited each other usually two or three times during the year. There seems to have been no dependency of either on the other, except that plaintiff contributed slightly to the support of her deceased sister.”

In the Chustz case, decided by the Orleans Court in 1936, the court allowed $1,500 each to a brother and sister, in addition to funeral expenses, for loss of companionship, love and affection. The court noted that the relationship between the 19 year old decedent and her brother and sister was “quite normal”, and further commented on the fact that there was no claim of dependency on the part of plaintiffs nor of any contributions to their support by their deceased sister.

In 1936 the Orleans Court decided the Pegg case, and made an allowance of $1,000 for loss of love, companionship, affection and for the pro-rata portion of the inherited claim for decedent’s suffering. However, in connection with the latter item, the court noted that the decedent, though lingering for five days after injury before death, was unconscious during the entire time, though giving evidence of periods of intermittent, acute suffering.

In the Warnick case [4 So.2d 613], decided by the First Circuit Court of Appeal in 1941, the court affirmed an award of $1,000.00 each to surviving brothers and sister of decedent without detailed comment, except for the observation that the decedent was held in “great esteem and affection by his brothers and sister.”

In the Cox case [47 So.2d 105], which was decided by the First Circuit in 1950, the court made an award of $125 each to the plaintiffs, the two sisters of decedent, but the reasons for such an apparently insubstantial allowance we believe to be adequately explained in the following factual analysis set forth in the opinion:

“As to the quantum of damages, it is shown that the two plaintiffs, Mrs. F. M. Moore, who was a resident of Hammond, Louisiana, and Mrs. Katie Cox, who lived in Clinton, Louisiana, were 73 and 78 years of age, respectively. It is shown that although Mrs. Cox lived in Clinton her brother did not stay with her and apparently she did not see him very often. He had at one time stayed at her house but there is some testimony to the effect that her son had caused him to leave. Regardless of the truth or not of this testimony, it is apparent that she and her brother were not very close nor did she take any great interest in the deceased and his affairs. It is also shown that Mrs. Moore, who lived in Hammond, did not see her brother often nor carry on any regular correspondence with him. There was no deep attachment shown and certainly very little companionship between the deceased and his two sisters.”

In the instant case we are called upon to perform the thankless and virtually impossible task of computing the value of imponderables such as love, affection and companionship in the mundane and materialistic terms of dollars and cents. This charges us with the obligation of attempting to resolve into a mathematical equation a number of unknown factors, vague, indefinite and infinite in their existence, extent and evaluation. In this pursuit, on the basis of the authorities above cited, we are compelled to take into account all differences in the circumstances and conditions of relationships between each of the plaintiffs and the decedent, and to measure the degrees of the warmth of the existing relationships and the love and affection between the respective plaintiffs and the decedent.

In performance of the unenviable task before us, it appears to be necessary to make some comment, in brief résumé, of the relationship between the decedent and each of plaintiffs.

Three of plaintiffs, John, Alva and Annie, were half-brother and half-sisters and, additionally, first cousins, of decedent. The five remaining plaintiffs were full brothers and sisters of decedent. This unusual relationship was due to the fact that decedent’s mother was first married to his father’s older brother, of which union the three children, John, Alva and Annie, were the result. Following the death of her first husband the widow married his younger brother and of this union were born the five remaining plaintiffs. At the time of the death of Clyde H. Dodge the respective ages of plaintiffs were as follows :

Alva Dodge Lucas 69 years

John E. Dodge 67 years

Ann Dodge Williams 65 years

Rhoda Dodge Freeman 62 years

Blanche Dodge Boyle 60 years

Thomas H. Dodge 55 years

Ralph S. Dodge 51 years

Reese E. Dodge 49 years

Decedent entered the service of the United States Navy, when he was 16 years of age, during World War I, and remained in service for several years. He entered and served in the Merchant Marine during World War II. The somewhat sketchy biographical narratives of decedent’s life, as given in the depositions of plaintiffs, indicates that he was inclined to travel from place to place and from job to job without incurring fixed responsibilities or obligations and without feeling either the inclination or the need to sustain any one kind of employment over a long period of time, despite which it appears he succeeded in earning a better than average living, and accumulated sufficient money and property to satisfy his needs. The succession proceedings filed in the record disclose the fact that decedent’s net estate, distributed among his brothers and sisters as heirs, amounted to something in excess of $8,000. Testimony in the record justifies the conclusion that decedent enjoyed a comfortable living, at all times, to such an extent that, as above noted, he was able to care for his sister, Mrs. Freeman, and, indeed to give assistance to other members of the family as occasion required. On the occasion of the accident which caused his death Clyde Dodge was making an. extended vacation trip with his companion, Thomas Shannon, in an automobile and trailer unit, and the course of the journey had taken the vacationers from California to Louisiana, from which it was contemplated they would proceed to the east coast before returning to California.

Alva Dodge Lucas lived in Mesa,.Arizona, some 400 miles from decedent’s home in Temple City, California, and she had the opportunity of visiting or being visited by her brother, Clyde, not more than two or three times a year.

John E. Dodge lived at Lehi Valley, Arizona, some four to five hundred miles removed from Temple City, California, and he testified that he had seen very little of his brother, Clyde, during their lives and had been with him only twice in the course of the preceding four years.

Ann Dodge Williams testified, mistakenly, we believe, that she saw Clyde “off and on all the time, every week or more often than that.” In view of the fact that Ann lived at Mesa, Arizona, and, considering the testimony of the other witnesses, particularly that of Mrs. Freeman, we are convinced that Mrs. Williams was inadvertently in error and it appears more likely that she had the opportunity of seeing her half brother, Clyde, only two or three times a year.

Blanche Dodge Boyle lived at Lehi, near Mesa, Arizona, and while her contacts with her brother had been frequent over a period of time they had become more rare since her removal to Arizona about six years prior to his death, during which period she saw him not more than a few times a year.

Ralph S. Dodge lived in Grant’s Park, Oregon, some 800 miles from Temple City, California, and testified that he and his brother visited about twice a year.

Reese E. Dodge lived in Norwalk, California, about 25 miles from Temple City, and had the opportunity to visit with his brother, Clyde, once or twice a month.

Thomas H. Dodge lived in Baldwin Park, California, only seven or eight miles from Temple City, and had more frequent contact with his brother than any of the other plaintiffs, with the exception of Mrs. Freeman.

While the frequency or infrequency of contacts between relatives is, at best, an unstable basis for fixing the value of companionship, it must be considered as one of the factors and, in the instant case, probably the most reliable indication of the closeness of the existing relationship. This is not to say that the love and affection, existing between brothers or sisters who are deprived of the opportunity of being with one another at frequent intervals, is any the less than those who are more fortunately situated, but, in our opinion, it does substantially affect the sense of loss and the resultant measure of damages caused by the untimely removal of one by the hand of death.

As has been many times observed, the fixing of damages based upon loss of companionship, and upon deprivation of the evidence of love and affection, is, perforce, an arbitrary determination. And we concede, as urged by counsel for plaintiffs, that, ordinarily, in this respect the finding of the trial judge is entitled to be accorded even more than the usual high degree of consideration. However, in the instant case, the trial judge was in no better position, nor did he have any greater advantage, than the members of this court, inasmuch as none of the witnesses appeared in person and the record is made up of testimony by deposition, together with documentary exhibits. We draw the inference, from the briefs and arguments ' of counsel, that the trial judge did not feel justified in making any distinction between the measure of damages as between the several plaintiffs and this, of course, is evident from the judgment itself in which equal awards were made to all parties with the exception of Mrs. Freeman, who was the only one claiming, and entitled to, an allowance for support. In some of the cases above cited our courts have pointed out the differences in the nature of the existing relationships as justification for distinctions in the amounts awarded, with which reasoning we are in accord. The difference in ages, in association, the opportunities for personal companionship, all are elements of consideration.

In the instant case we are further impelled to give some attention to the decrease in the purchasing power and consequent value of the dollar, and further to the ability of the defendant to respond in damages. These have become almost routine matters for attention of courts in arriving at the quantum of damages in any case, and it follows that precedents are to be evaluated in the light of these circumstances with respect to a determination of their weight and influence.

In view of all these considerations, and for the reasons which we have set forth, deeply sensible of the fact that the necessary arbitrary nature of such an action will neither please nor satisfy any of the parties litigant, and even more aware of our own dissatisfaction with such a necessity, we have concluded that the judgment appealed from should be amended and recast in order to effect what we regard as indicated changes in the amount of the awards, with the exception, of course, of the pro-rated allowance made to each of the plaintiffs for reimbursement of funeral expenses.

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be and it is hereby amended and recast to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of the plaintiffs, hereinafter named, and against the defendants, United States Casualty Company, Foremost Dairies, Incorporated, and James Davis, in solido, in the amounts hereinafter set forth, with interest thereon at the rate of 5% per annum from date of judicial demand until paid, together with all costs, to-wit:

Mrs. Rhoda Dodge Freeman $12,621.23

Mrs. Alva Dodge Lucas 1,624.24

Mrs. Annie M. Dodge Williams 1,624.24

John E. Dodge 1,124.24

Mrs. Blanche Dodge Boyle 1,624.24

Thomas H. Dodge 3,124.24

Ralph Seth Dodge 1,624.24

Reese E. Dodge 2,124.24

As amended and recast the judgment appealed from is affirmed.

On Rehearing

PER CURIAM.

In application for rehearing filed by counsel for defendants our attention is called to the fact that the allowance for funeral expenses incorporated in the judgment was erroneously fixed in the amount of $990.91 despite a stipulation and agreement as to the actual expenses in the total sum of $969.91. Reference to the record indicates that this over-allowance to the extent of $21 derives from what was apparently a typographical error in the judgment of the lower court. It is appropriate that this' mistake be corrected, and, accordingly,

The judgment of this court on original hearing is amended by reducing the amounts allowed all defendants, with the exception of Mrs. Rhoda Dodge Freeman, to the extent of $3 each,

' The application for rehearing is denied.