text:
    J. A. ROBINSON, IV, v. A. A. BENSABAT, Jr., et al.
    No. 4209.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Linus P. Terrebonne, Jr., Morgan City, for appellant.
    Chas.' F. Seeman, New Orleans, Bernard J. Caillouet, Robert D. Morvant, Thibodaux, for appellees.
   LOTTINGER, Judge.

Petitioner filed this suit against A. A. Bensabat, Jr. and Mort Silverman seeking the specific performance of alleged contracts or, in the alternative, damages for breach. Both defendants filed exceptions of misjoinder and defendant Silverman additionally filed an exception to the jurisdiction rationae personae. All of the exceptions were maintained below and the petitioner’s entire suit was dismissed. Petitioner filed this appeal.

TJhe petition sets forth that on November 18, 1953, petitioner and defendant A. A. Bensabat, Jr., entered into the following, contract:

“In consideration of One Dollar ($1.00) and labor necessary to install1 and place in satisfactory operation radio broadcast equipment for Radio Station KMRC owned by Tri City Broadcasting Incorporated at Morgan City,. Louisiana, A. A. Bensabat, Jr., agrees to transfer fifteen shares of stock in TriCity Broadcasting Incorporated. Said! transfer of stock shall be subject to approval of the Board of Directors of Tri City Broadcasting Incorporated, transfer of stock shall not take effect until said labor is performed by J. A. Robinson IV and deemed satisfactory by the Board of Directors of Tri City Broadcasting Incorporated. Witness our hands and seals this 18th day of November 1953.”

Said contract was signed by A. A. Bensa-bat, Jr. and J. A. Robinson IV and is filed of record in this proceeding.

The petition further sets forth that on1 November 16, 1953, petitioner and defendant Mort Silverman entered into the following contract:

“It is hereby agreed by the writer to turn over to you five (5) shares of Stock in Tri City Broadcasting, Inc., now owned by me, for payment in lieu of cash for installation of equipment for Radio Station KMRC in Morgan City, Louisiana. This is also to be considered as full payment to you for all other obligations which you may feel the writer owes you as a partner in Tri City Broadcasting Company. This agreement'is only valid if at least an equal amount of stock is turned over to you for the above reasons as stipulated by Mr. A. A. Bensabat, partner in Tri City Broadcasting Co.”

Said agreement was signed by Mort Silver-man and J. A. Robinson IV and is filed of record in this proceeding.

The petition further alleges that all conditions of the contract have been performed by the petitioner but that the defendants have refused to transfer the stock to petitioner. The petitioner, therefore, seeks ■specific performance or, in the alternative, damages, in the amounts of $1,500 from defendant Bensabat and $500 from defendant Silverman.

The defendants each filed an exception of misjoinder of parties defendant. The grounds for said misjoinder are that the contracts are separate and distinct, that there is no joint or solidary obligation by defendants disclosed in the petition, nor is any privity of contract shown between the parties defendant, nor is it shown that the defendants were partners in the hiring of petitioner. »

Defendant Silverman further filed an exception to the jurisdiction rationae personae on the grounds that he is a resident of the Parish of Orleans and must be sued in his own parish, and that the petition sets forth no exception to said jurisdictional requirements.

The Lower Court maintained all exceptions and dismissed the entire suit. The petitioner has filed an appeal.

The record shows that defendant Bensa-bat is a resident of the Parish of Lafourche, whereas the defendant Silverman is a resident of the Parish of Orleans. Article 162 of the Louisiana Code of Practice provides as follows:

“It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence, and shall not be permitted to elect any other domicil or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law.”

There is nothing in the petition which would show that defendant Silverman would come within any of the exceptions to the above article. It is clear that the contracts were separate and distinct, that there was no joint or solidary obligation by defendants, nor was there any partnership or privity of contract existing between them. For the said reason, we believe that the exception of jurisdiction rationae personae filed by defendant Silverman was properly maintained. The proper Courts for the determination of his obligations under his contract would be those of his own residence in the Parish of Orleans.

As to the exceptions of misjoinder of parties defendant, we believe that same was properly maintained, as to defendant Silverman, for the same reasons as given above. There is no showing that he was a party to, or had any interest whatever, in the contract between petitioner and defendant Bensabat. His contract with petitioner was a separate and distinct agreement and we feel that petitioner’s rights, if any, thereunder must be maintained by a separate and distinct suit against Silverman which must be brought in the jurisdiction of his residence.

As to the exceptions filed by defendant Silverman were maintained by the Lower Court, and will be affirmed by this Court, we feel that the exception of misjoinder filed by defendant Bensabat now becomes a moot question. True, there was originally an improper cumulation of actions in this suit. However, by the maintenance of the exceptions by Silverman, the action as against him will be dismissed, and defendant Bensabat will have no cause for complaint. The Lower Court, in dismissing the entire suit, gave the following reasons therefor:

“It is the Court’s opinion that the exceptions of misjoinder of parties-defendants must be maintained and that plaintiff’s entire suit be dismissed for the reasons set forth in the case of Delesdernier Estate, Inc., v. Zettwoch, La. App., 175 So. 137, wherein the Court held that where defendants are improperly joined in a suit and the court is unable to determine which of said defendants are improperly joined, the entire suit must be dismissed.”

We do not believe that it is impossible to determine which of the defendants are the proper party to this suit. In Pasqua v. State National Life Insurance Co., Inc., 226 La. 354, 76 So.2d 394, 395, the Supreme Court of Louisiana stated:

“Of course, there are cases in our jurisprudence (cited in the brief of defense counsel) which seem to hold that the sustaining of an exception of mis-joinder of parties carries with it a dismissal of the entire suit. But in none was the exception sustained because of the lack of real and actual interest— rights of action — in some of the joined parties, as here. Rather, in each of those cases there was misjoinder for the reason that the parties sought to be joined had no common interest in the litigation, although all were directly interested in its outcome. And, as a consequence, the court could not discriminate among them, dismissing' the suit as to some and maintaining it as to others. But in this cause a partial dismissal can be decreed without any resulting discrimination.”

There is certainly no discrimination by maintaining the suit against the defendant Bensabat. The petition shows a right and cause of action against him, whereas, it does not show a right of action against Silv-erman in the Parish of Lafourche. A dismissal as to defendant Bensabat would only burden the petitioner and the Court, as well as defendant Bensabat, with the necessity of the instigation of a new action against him. True, there has been an improper cumulation of two actions herein, one against defendant Bensabat and one against defendant Silverman. The action as against Silv-erman was without jurisdiction and, therefore, must be dismissed. By said dismissal‘there is Certainly no discrimination as against Bensabat, and the action will be maintained as against him.

Since the appeal of this matter, both defendants have filed exceptions of no cause of action based upon the following grounds:

“1. The alleged contract between plaintiff and Albert A. Bensabat, Jr., is unenforceable because it contains a potestative condition subject to the unenforceable discretion of a third party not privy to the contract.
“2. The alleged contract between plaintiff and Mort Silverman is unenforceable for the same reason, i. e., being subject to the unenforceable discretion of a third party not privy to the contract.”

Now in order to determine the merits of the exception we must accept all allegations of the petition as being true. Article 6 of the petition states that “Petitioner * * * has performed his part of both the contracts in full and that all of the conditions of both of the contracts have been met and fulfilled * * *.” Furthermore, we do not believe that the contract contains a potesta-tive condition, as Article 2024 of the LSA-Civil Code defines potestative condition as “ * * * that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.” Not all potestative conditions render a contract null. Only those “ * * * which make the obligation depend solely on the exercise of the obligor’s will”. LSA-C.C. Art. 2035.

As we do not believe that the exception of no cause of action, insofar as Bensabat is concerned, is well founded, same .will be dismissed. As to the exception of Silverman, same is now a moot question and calls for no decision, however, the same rules would apply.

For the reasons hereinabove assigned, the judgment of the Lower Court is amended so as to maintain the exceptions of jurisdiction and misjoinder as to the defendant Silverman, and the cause of action against him is hereby dismissed, at petitioner’s costs. The exceptions of misjoinder and of no cause of action filed by defendant Bensabat are overruled, all costs of same to await the final determination of the case.

Judgment affirmed in part and reversed in part and case remanded to the Lower Court for trial.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Marcel J. COUSIN v. H. B. HORNSBY et al.
    No. 4191.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      Fred J. Heintz, Covington, Benj. W. Miller, Bogalusa, for appellants.
    L. V. Cooley, Jr., Slidell, for appellee.
    James T. Burns, Dist. Atty., Covington, for St. Tammany Police Jury, called in warranty.
   LOTTINGER, Judge.

The trial judge rendered written reasons for judgment which we herewith set out in full:

“The plaintiff, alleging himself to be the owner of some 24}/£ acres of land in St. Tammany Parish and particularly described in Article II of his petition, brings this suit for damages in the sum of $2,000.00 for an alleged trespass on said property by the defendant Horns-by.
“The petition sets forth that the defendant Hornsby obtained a contract to perform certain drainage and dredging operations near Bayou Liberty at Slidell in the Parish of St. Tammany; that this contract was with the Police Jury of St. Tammany Parish and performed under the supervision of the Department of Public Works of the State of Louisana. The petition further alleges that the plaintiff’s property bordered on Bayou Liberty and while the defendant was performing his contract with the Police Jury of St. Tammany Parish relative to the dredging operations, he did dredge the said bayou and widen the same, causing the damage to the property of the plaintiff which bordered on said bayou. The plaintiff claims damages for the destruction of growing trees on the property to a value of $500; he claims $200 for cutting off approximately two acres of his land as a result of the changing of the course of the Bayou by the dredging operations; he claims $500 for the destruction of two flowing springs on the property; $50 for the destruction of a boathouse and $750 for damages caused by a large mud dump or levee thrown up on petitioner’s land adjacent to the banks of the said bayou. The petition further alleges that when the defendant would not amicably settle this claim the plaintiff did file and record his claim against the defendant under the contract, and that the defendant subsequently agreed to substitute a bond in the sum of $2,500 for the release of said claim. The defendant accordingly furnished a bond with the Maryland Casualty Company as Surety thereon, and accordingly judgment is also sought against the said Surety herein.
“The defendants in answer denied they were indebted to the plaintiff in any sum whatsoever for the reason that neither of the defendants ever trespassed on the property of the plaintiff. They further set forth that the defendant Hornsby, acting in pursuance of his contract with the Police Jury of the Parish of St. Tammany, entered upon all of the property of every kind pointed out by the Police Jury as condemned for the drainage, canal, and that the same had been surveyed and staked out by the Police Jury of the Parish of St. Tammany and he stayed within these stakes and operated as instructed by said Police Jury, and did actually construct the canal and erect the levee as he was required to do under his contract. He further set forth under the contract it was the duty of the Police Jury to obtain the rights of way for the drainage canal and that the Police Jury was a necessary party to the action, and he accordingly called the Police Jury in warranty herein. Assuming the position of plaintiff in re-convention the defendant set forth that due to the fact the plaintiff filed an illegal claim against him for trespass and that he was forced to expend the sum of $250 as a premium for a bond, as well as $175 for attorney’s fees expended ; $500 for loss of time; traveling expenses $250, and attorney’s fees of $500 in defending this action, and accordingly he seeks recovery in re-convention in the sum of $1,875.
“The police jury as a result of the call in warranty answered and set forth that it entered into a contract with the defendant Hornsby for the construction of the drainage canals, but said defendant denied that it surveyed or staked out a right of way of the land owned by the plaintiff, or that it pointed out to the defendant Hornsby any land owned by the plaintiff as having been condemned for the drainage work in question. The defendant Police Jury further specifically denied that it authorized the defendant Hornsby to enter upon the plaintiff’s land, but on the contrary, notified him through his agent, that it had not secured a right of way from the plaintiff, and warned him not to enter upon the land until a right of way had been obtained or the land had been expropriated.
“The facts as developed on the trial of this case show that the defendant Hornsby entered into a contract with the Police Jury of St. Tammany Parish in March 1952 for the construction of certain drainage canals in the Parish of St. Tammany; the specifications for these drainage canals under the contract shows that the Police Jury of the Parish of St. Tammany was to obtain the rights of way for the work under the contract. It is further shown that the work was to be done under the supervision of the Engineers of the Department of Public Works. It is apparent from the testimony of these Public Works engineers that prior to the beginning of the construction of these canals, that surveys were made and stakes were placed where the said canals were to be dug; it is further apparent from the testimony that the position taken by the defendant Hornsby is that he had the right to enter any of these lands where these stakes were placed and do the dredging work irrespective of the fact as to whether he knew that the property surveyed had been obtained from the land owner in question. It is true that it was the duty of the Police Jury of St. Tammany Parish under the contract to obtain the necessary rights of way for these drainage canals, and in connection therewith the Police Jury had employed the services of Mr. Homer G. Fritchie, a surveyor of Slidell, Louisiana, to do this work. Mr. Fritchie’s testimony shows he made repeated efforts to obtain the rights of way over the property of this plaintiff for said drainage canals, but was unsuccessful in doing so, and that prior to the time that the sub-contractors of this defendant went on the property of the plaintiff, he having observed they were in the adjacent community with their equipment, he notified Police Juror Broom to instruct the operators of the defendant’s equipment not to go onto the plaintiff’s property, for the reason that the right of way had not been obtained. The testimony further shows that Police Juror Broom carried out the instructions of Mr. Fritchie and did notify Mr. Corbin, the bulldozer operator, not to go on the land of this plaintiff for the reason that the right of way had not been obtained; that irrespective of this warning, Corbin, who was acting for the sub-contractors Vincent and Hodkins, and had full authority, as shown by their testimony, proceeded to dig the drainage canal across this plaintiff’s property, causing the damage which forms the basis of this suit. Certainly the mere fact the property was staked off by the Department of Public Works, and the further fact that it was the duty of the Police Jury to obtain the right of way could not relieve this defendant, through his agents, from trespass on this plaintiff’s land when he knew, through his agents,. at the time he entered the land that he had no legal right to do so. I am accordingly of the opinion that the defendant Hornsby is liable for the damages occasioned this plaintiff, and that no liability under the circumstances can attach to the Police Jury of St. Tammany Parish.
“The evidence shows that the plaintiff owned some 24j/^ acres of land on the east side of Bayou Liberty and that when the drainage canal was constructed across this property mud and debris was thrown on the banks of the plaintiff’s property for a distance of some 1800 feet. This mud and slush was some six feet in height, and at the base thereof some 40 feet in width. Plaintiff in his petition claims the sum of $750 for the removal of this dirt from his land, but I note from the testimony of his expert, Mr. Charles Fritchie, that he claimed it would cost $1,800 to remove said dirt. This was an estimate of $1 per foot by Mr. Charles Fritchie. On the other hand, the sub-contractor Vincent testified that this dirt could be removed for 10 cents per foot, making of course, a total of $180. These are the only two witnesses who testified as to this element of damage. I am of the opinion it would cost less than Mr. Fritchie testified it would to remove this dirt, and more" than as testified to by Mr. Vincent, and I fix the cost of the removal of this dirt at the sum of $600 which is approximately one-third more than as testified to by Mr. Vincent, and two-thirds less than as testified to by Mr. Fritchie — this fixing is, however, within $150 of the original claim made by the plaintiff.
“It is further shown as a result of the drainage operations a boathouse owned by the plaintiff, which was constructed with a tin roof .and supported by several posts, was destroyed. It is further shown that the siding from this boathouse had been removed therefrom by others. A claim of $50 is made for this boathouse, and even though it was of scanty construction, I seriously doubt that it could be replaced for a less figure under present prices, and this item will be allowed.. The plaintiff has claimed the sum of $500 for the loss of two springs that were on the property. It is apparent from the testimony that the dirt that was thrown on the plaintiff’s land covered these two springs, and I am of the opinion when , this dirt is removed the springs will be restored, and this item will not be allowed. The plaintiff claims $500 for loss of growing trees and timber on the property, and he has filed in this record an estimate made by William H. Davis, Jr., a timber estimator, to the effect that $398 worth of cypress, pine and hardwood timber was destroyed as a result of the dredging' operations. While I note this estimate is dated June 2, 1952, Mr. Davis testified that it was based on an estimate he made in 1951, and it is shown that in December 1951 Mr. Davis actually cut all the tim- ' ber larger than ten inches from said ’ property. I am inclined to believe this estimate was made when Mr. Davis actually cut the timber in 1951 and he actually cut and removed this amount of timber in December of 1951. My reason for reaching this conclusion is that Mr. Homer Fritchie, a surveyor and Mayor of Slidell, testified there was no timber on this right of way prior to the dredging operations. Mr. Vincent, sub-contractor, testified to a like effect. The plaintiff further claims the sum of $200 due to the fact that two acres of his land was cut off and placed on the west side of the Bayou .as a result of the drainage canal cutting through certain bends in the Bayou Liberty across his property. He not only claims the $200 for the loss of the land but further claims damages for the loss of the timber thereon, due to the fact he couldn’t get it out over the property which is on the west side of the bayou. He did not show he had made any effort to get this timber off the property or obtain permission from the adjacent landowners to remove it, and as a matter of fact, if there is any timber thereon he can remove it down the canal that has been dug. Further .than this, even though the two acres of land was cut off and placed on the west side of the bayou, there is not one scintilla of evidence to show the value of the acreage of this land, and the court cannot resort to guess work and speculation in a determination of damages that should be allowed for these two acres. Accordingly, this item will not be allowed.
“As heretofore set forth, the Maryland Casualty Company as Surety on the bond was made a defendant herein, the bond being in 'the sum of $2,500. This bond was given by Hornsby to release the claim that the plaintiff had' recorded and filed in the office of the Clerk of Court of St. Tammany Parish.' The Police Jury naturally would not pay Hornsby thé ‘amount due under the contract until this claim was satisfied in some manner. Under the provisions of the contract for the construction of the drainage canal the contractor was responsible for any damage done to private property caused by any act of omission or neglect upon his part, and' he was further held to the duty as the contractor to keep the State and Parish harmless from any suits and claims of any character brought for any damages sustained by any person or property ■ on account of his negligence, etc. The contract further provided that the Police Jury - could withhold any monies due the contractor until such claims had been settled and suitable evidence furnished to -the Police Jury. I am of the opinion that the recording of this •claim by the plaintiff, while it did not constitute a lien against the fund owed' by the Police Jury to the contractor Hornsby, did serve notice on the Police Jury that this claim was outstanding and all the Police Jury did was" to re- ' quire the defendant Hornsby to furnish the bond in order • to protect it when it paid him the amount due him under the contract. Certainly, under the circumstances the plaintiff herein did not commit any illegal act iii filing his claim in the mortgage records of the parish, which would be notice to the Police Jury thát he had an outstanding claim against the defendant Hornsby. I might further note that while the defendant contends this was a lien, neither the plaintiff nor defendant sought to file evidence of this lien or claim, and no claim for that matter as recorded has been filed in this record. Since I am of the opinion that the plaintiff .had the right to bring notice to the Police Jury he had an outstanding claim by filing it in the mortgage records of the parish, then the reconven-tional demand of the defendant herein cannot be allowed.
“Accordingly, for the above and foregoing reasons, there will be judgment herein in favor of the plaintiff, M. J. Cousin and against the defendant H. B. Hornsby and Maryland-Casualty Company in the full sum of $650-with legal interest thereon at the rate of 5% per annum from date of judicial demand until paid.”

The matter is now before us on an appeal taken by the defendants, H. B. Horns-by and Maryland Casualty Company. The plaintiff has' answered the appeal seeking an increase in the damages awarded.

A careful review of the record discloses that the trial judge’s findings of fact are eminently correct and-we adopt them as our own.'

-We are of the opinion, however, that-the judgment rendered by the Lower Court-should be amended by awarding, judgment in favor of the defendants H. B. Hornsby and Maryland Casualty Company and against the Police- Jury of the Parish of St. Tammany for the said amount- that is awarded. in favor of the plaintiff against-the original defendants.

The plaintiff is suing for an alleged trespass upon his property where it was taken for drainage purposes iii the Parish of St. Tammany. The facts as we find in the record are that the Parish of St. Tammany contracted for certain drainage work, among which was the cleaning out and straightening of Bayou Liberty. The surveys were made and the land definitely staked off. The defendant Hornsby subcontracted a portion of the drainage work, among which was the canal to be dug across plaintiff’s property. It really consisted of cleaning the bayou and straightening it out at one point. The plaintiff, who had lived in New Orleans for a number of years, came up to his property in May and the stakes were down then, and he also during his visit saw where the bulldozer had pushed a path within the stakes across his property preparatory to bringing in the dredge to do the actual cleaning and straightening of the bayou. He took no legal action nor action of a definite nature which would have enjoined or prevented the taking of his property.

The plaintiff had two courses to pursue: First, to protest, which we understand he did, and as a result of his protest Mr. Fritchie, the parish engineer, sent a message to the subcontractor not to go on the property, that the Police Jury had not yet secured the title to the right of way, although at that time a resolution authorizing the-filing of an expropriation suit had been passed by the Police Jury. Since the protest was unavailing, plaintiff then in order to procure his rights could have filed suit enjoining the Police Jury and the defendant through his subcontractor from going on his land, which, of course, would have forced expropriation proceedings. Secondly, he could have allowed the Police Jury through its contractor and sub-contractor to go on the property and he could sue for the value of the land taken as well as damages to the adjoining property as is always allowed in expropriation proceedings. In other words, a party may prevent the taking of or use of his land unless and until expropriation proceedings are filed and the value and damages are fixed in such a suit, or he may allow or acquiesce in the taking of his property by failing to take proper legal action to prevent the use of his property unless and until the value and damages have been fixed in an expropriation suit.

It must be remembered in this case that the plaintiff had full knowledge as shown by the record prior to the time the defendant subcontractor entered his property. He testified himself that he had been on the property and a witness offered by him who visited on weekends with him testified to facts which showed knowledge on his part that they were about to take his property. In fact, he employed his attorney before the contractors went upon the property but after it had been surveyed and staked off. The record further shows that the work was done in accordance with the contract and within the limits of the stakes, in other words, the Police Jury is getting exactly what they contracted for, and to allow them to get it at the expense of the contractor is inequitable and contrary to law. In other words, they got their drainage system through plaintiff’s property in accordance with the contract and they should pay the price consisting of the value of the land as well as damage to the adjacent land.

In our opinion this record shows no damages as a result of any act committed by the defendant and his subcontractor. Everything done was done in accordance with the contract except the act of going on the property prior to the actual expropriation thereof. No damages were committed outside the terms of the contract by this act. In other words, the plaintiff, with knowledge that the contractor was going upon his land to complete the drainage system in accordance with his contract with the Police Jury, did not choose to legally prevent such action and he is therefore relegated to only an action for the value of his land taken and damages to his adjacent property. This is exactly what he could have gotten and what the Police Jury would have had to pay him had he forced an expropriation suit, and it is exactly what he can get according to the authorities, once the improvement is placed on his property. We are not concerned with the question of removal for his suit is only one for damages. He would have had to yield the property had an expropriation suit been filed. See St. Julien v. Morgan’s La. & T. R. Co., 35 La.Ann. 924; Gumbel v. New Orleans Terminal Co., 186 La. 882, 173 So. 518; Tate v. Town of Ville Platte, La.App., 44 So.2d 360 and Koerber v. City of New Orleans, La.App., 76 So.2d 466.

In other words the Police Jury had the right to expropriate this property, the plaintiff had the right to resist, however, he waived this right and under the law the plaintiff can now only get that which he could have gotten had he forced an expropriation proceedings, viz., the value of the land taken and damages incidental to the taking; the nature of such damages is well fixed in expropriation suits. While the cases cited involved to a certain extent the right to force a removal of railroad tracks or gas pipe lines and plaintiff is not seeking any such remedy in the present case, they are authority for the holding that once the improvement is placed upon the property with the knowledge and consent of the owner, which as we understand it may be specific or tacit or by knowledge and not action such as a failure to take legal action to prevent the taking of his property, he is then left only one remedy, of suing for the same damages he could have gotten had an expropriation suit been filed.

In our opinion the Police Jury cannot have its cake and eat it, too. It cannot say we told him not to go on the property and yet accept the completed works. In our opinion they are the proper party to pay for any all damages resulting from the execution of the contract which were the result of acts committed within the terms of the contract by the defendant. We fail to see in this record any facts which show any damages resulting from any act of the defendant other than as provided by the contract.

In so far as defendant contractor’s reconventional demand is concerned against the Police Jury for the claim for premium and bond, for attorney’s fees, etc., we do not believe that this contractor is entitled to said amount because, if he had followed instructions and stopped the work, he would not be in the controversy or position that he is today; in other words, it would not have been, necessary for him to furnish this bond and employ attorneys if he had followed instructions given by the Police Jury.

Therefore, under the circumstances, we are of the opinion that the judgment of the Lower Court should be affirmed and amended and same is hereby amended by awarding judgment in favor of the contractor H. B. Hornsby and Maryland Casualty Company against the Police Jury of the Parish of St. Tammany in the full sum of $650 with legal interest thereon at the rate of 5% per annum from date of judicial demand until paid and for all costs of this suit.

Judgment amended and affirmed.


author: ELLIS, Judge.

text:
    Mike L. FISHER v. Charles J. GAYER.
    No. 4183.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.

      France W. Watts, Jr., Franklinton, for appellant.
    Richardson & Richardson, Bogalusa, for appellee.
   ELLIS, Judge.

Mike L. Fisher brought this suit seeking to recover for damages to his vehicle amounting to $126.36 resulting from a collision, which occurred on October 11, 1952, on Louisiana State Highway Number 34 about four miles south of the Town of Franklinton at approximately 3:30 P.M. The plaintiff alleged in his petition that the defendant’s truck was driven into the side of his truck, causing the accident. The defendant, Charles J. Gayer, answered plaintiff’s petition, denying the allegations therein, and making a reconveritional demand for damages to his truck in the amount of $54.94 based upon allegations that the plaintiff’s negligence was the proximate cause of the collision. Alternatively, the defendant pleaded the plaintiff’s contributory negligence as a special defense.

A pre-trial conference was held on March 1, 1955¿ at which a statement of facts was agreed upon and the damages to the plaintiff’s truck arid the defendant’s truck were set at $101.36 and $54.94, respectively.

After trial on the merits, the demands of the plaintiff were rejected and judgment was rendered for Charles J. Gayer, the plaintiff in reconvention, in the full sum- of $54.94, with legal interest thereon from date of judicial demand ■ until paid, and taxing all costs of suit to Mike L. Fisher, the plaintiff. The plaintiff has suspensively appealed from this judgment and the defendant has answered the appeal, praying that the judgment of the trial court be “sustained in its entirety.”

Considering the record as a whole, the accident seems to have occurred. in the following rnanner. Mike Fisher, proceeding along the highway in a southerly dh rection, slowed down to approxiriiately 15 miles per hour, pulled slightly toward the right shoulder of the road, made a hand signal, and, traveling approximately 15 feet after signaling, turned into the left lane, intending to cross the highway and turn into a gravel road which -entered the highway at right angles. At no time did he look back or attempt to ascertain whether or not another vehicle was approaching from the rear, as he himself testified. Meanwhile, Mr. Alvie Bowman, driver of defendant’s truck, approached plaintiff’s truck from the rear and, observing it pulling to the right, blew his horn and pulled into the left lane to pass. Then the collision occurred, in the left lane, the right front wheel of the defendant’s truck ’ striking the left front wheel of the plaintiff’s truck. The testimony is in conflict regarding the question. of whether or not Bowman gave a horn signal, but the preponderance of the evidence indicates that he did. The defendant’s truck then ran off the road on the left and traveled about 100 yards until it came to rest.

The trial court’s opinion contains the following observations and findings, with which this court agrees:

“One of the most dangerous maneuvers a person can make in the operation of a motor vehicle is to turn from his proper lane of travel across a highway without first ascertaining that such a maneuver can be made in safety. This plaintiff did not even look to see if he could make such a maneuver in safety, and further than this, he gave no timely signal indicating his intention to turn across said highway, as the signal was without any effect whatsoever, for at the time' the defendant’s truck was so close on the plaintiff’s truck that it was impossible for the defendant’s driver to stop in time to avoid the collision.
“The factual situation herein presented is practically the same as presented in the case of De La Vergne v. Employers Liability Assurance Corporation [La.App.], 4 So.2d '66, except in this cited case the plaintiff did not blow his horn indicating his intention to pass, and was still permitted to recover. In the present case the defendant’s driver did sound his horn indicating his intention to pass. After careful review of the testimony herein, I am satisfied that the defendant’s driver was not guilty of any negligence whatsoever in connection with this accident, and the acts of the plaintiff, as heretofore outlined, constituted the proximate cause of said accident.”

The plaintiff contends that the defendant’s vehicle was being operated at an excessive rate of speed because it traveled so far after the impact. However, in view of the fact that the defendant’s truck was loaded with feed at .the time of the accident and the fact that the greatest portion of the distance traveled after the impact was down an incline and off of the road, the plaintiff has failed to sustain this contention.

There is testimony in the record regarding the failure of the brakes in the defendant’s truck after the accident occurred. However, the condition of the brakes, after the accident does not have too much bearing on the condition of the brakes at the time of the accident for under the facts it was impossible for the defendant to avoid the accident by the use of brakes or otherwise. However, the defendant’s employee Otha Schelling, who had driven defendant’struck the day before, corroborated Mr.’ Bowman in his statement that the brakes. were in good condition prior to the collision.

For the reasons assigned, the judgment appealed from is affirmed at plaintiff’s cost,


author: GLADNEY, Judge.

text:
    Calvin WILLIAMS, Plaintiff-Appellant, v. SOUTHERN ADVANCE BAG & PAPER COMPANY, Inc., et al., Defendants-Appellees.
    No. 8460.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    Rehearing Denied May 21, 1956.

      Dhu & Lea S. Thompson, Monroe, for appellant.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellees.
   GLADNEY, Judge.

The plaintiff, Calvin Williams, has appealed from a judgment which awarded workmen’s compensation payments for a period of ten weeks’ disability following the occurrence of an accidental injury on October 14, 1953.

Suit was filed on February 5, 1954, against Southern Advance Bag & Paper Company, Inc. and Liberty Mutual Insurance Company, in which action plaintiff alleges he sustained a hernia while employed cutting and loading pulpwood and which injury has created a condition of total and permanent disability, entitling him to compensation under the provisions of the Louisiana Workmen’s Act. Plaintiff supplemented his original petition by making Lois Babers an additional party defendant, asserting that Babers was his immediate employer and a contractor employed by the Southern Advance Bag & Paper 'Company, Inc. The defense posed by the several defendants is in the nature of a general denial. Exceptions of no right of action and no cause of action were filed, but must be considered as abandoned as such exceptions are not urged before this court.

The employment of plaintiff, the occurrence of an accident subject to the provisions of the Workmen’s Compensation Statute, the amount of weekly compensation due, if any, are not disputed. The sole and only contention raised by the defense questions the extent and duration of plaintiff’s injury. In written reasons for judgment the District Court made findings favorable to plaintiff, but was of the opinion the employee should have taken steps to correct his disability and upon his failure to do so, compensation should be discontinued.

Calvin Williams was first employed by Lois Babers about five months prior to his injury. Before commencing employment he underwent the customary physical examination by Drs. Grover C. Black and A. E. Mc-Keithen, physicians acting on behalf of his employers. His duties consisted of cutting and loading pulpwood for which he was paid at the rate of $4.50 per cord and which remuneration averaged $40 per forty-hour week. On the date of the alleged injury he was so engaged loading pulpwood with J. W. Moore and Clinton Sanders. The three were lifting a rather large pine log to place it upon the truck when, as he testified, he felt a stinging sensation in his groin, felt dizzy and was sick at his stomach. He laid down on the ground awhile and then caught the next truck and reported to Drs. Black and McKeithen at their clinic in Hodge, Louisiana. His testimony was substantially corroborated by his co-workers.

Dr. Black made a physical examination after which he concluded that plaintiff strained certain muscles in the inguinal region of the left ring, which injury he described as being “traumatic mouth size”. He prescribed rest and fitted Williams with an abdominal support which he stated was merely given for the purpose of making him feel better. The doctor also prescribed mild sedation and thereafter continued to see and treat the employee on some ten occasions. Dr. Black testified he was never able to demonstrate hernia and finally called in his partner, Dr. A. E. McKeithen, who examined plaintiff three times. Both doctors found extreme tenderness but assert that there should have been a recovery within five weeks. On the last examination both of the doctors proposed to Calvin Williams that he return to them for a hernia operation for the purpose of correcting the disability. Thereafter plaintiff did not return. It was explained by the two doctors that the suggestion of an operation was only for the purpose of testing the sincerity of plaintiff’s complaints as actually an operation was not indicated.

On October 28th plaintiff was examined by Dr. Thomas A. Dekle, of Jonesboro, Louisiana, upon the suggestion of an attorney whom he had consulted. Dr. Dekle was not subpoenaed by plaintiff but responded to an instanter summons after plaintiff testified that he had visited Dr. Dekle. The doctor testified he found both right and left rings normal and there was no evidence of hernia. He stated plaintiff complained of a knot but he, the doctor, found only a tightened muscle about the size of a walnut. The doctor testified further that he again examined plaintiff on December 22, 1953. Rebuttal evidence was tendered by plaintiff to the effect that plaintiff was in Shreveport at the time of the latter examination.

During May of 1954, at the instance of his counsel, Williams was examined by Dr. James E. Walsworth of Monroe, Louisiana, who testified that plaintiff sustained in the accident a definite left indirect inguinal hernia. The doctor testified the condition was not congenital and reasoned that if it were congenital there would not be any evidence of tenderness. He expressed the opinion: “Any lifting exercise or manipulation might precipitate an incarcerated or strangulated hernia”, and that therefore, plaintiff was disabled to do manual labor because of the danger involved.

In June of 1954, Williams was examined by Dr. Marvin T. Green of Ruston, Louisiana, upon the solicitation of appellees. Dr. Green concluded that both rings in the inguinal region wete moderately relaxed. He found no sac, no bulging into the ring, and no impulse on coughing and straining. He expressed the belief that the relaxed rings were of congenital origin. The doctor further testified that in his written report of the examination he had conceded the existence of a potential hernia which he explained in these words:

“What I mean by that is that this represents a lack of full development in this area and a hernia could become manifest.”

During September and October of 1954, plaintiff was examined for the existence of a hernia by Dr. Irving Joseph Wolff of Monroe, Louisiana, on three different occasions with a finding of a left inguinal indirect hernia of a moderate degree. He testified that the bulge had protruded down into the ring the size of which was about that of one joint of the index finger. He was of the opinion that it would be dangerous for plaintiff to work at manual labor because of possibility of strangulation.

Dr. C. H. Hill of Monroe, Louisiana, testified that upon an examination made of plaintiff approximately a year following the accident, he found a small indirect left inguinal hernia which the patient’s history indicated was due to trauma. He stated that plaintiff was still wearing a support at the time of the examination. His findings revealed a small bulging and an opening deep enough to permit strangulation. It was his opinion that plaintiff should perform no work without wearing a proper truss, and if he did so it would be dangerous because of liability of strangulation.

A final examination of Williams was made by Dr. A. D. Tisdale of Monroe, Louisiana, on january 30, 1955. Dr. Tisdale testified that his’ examination disclosed that the left inguinal ring was three times as large as the right, that he could insert his index finger through the scrotum, and that upon the patient coughing he felt a considerable lump or bulge in the left ring. It was his ppinion that heavy manual labor would be dangerous.

The only lay testimony offered to support the medical evidence in his behalf, was the testimony of Calvin Williams himself, who stated that as of the date of trial he still experienced symptoms of pain in the left inguinal ’ region upon doing straining work and at times he gets dizzy" and his stomach is "upset. He stated that he has done no heavy work since the accident of October 14, 1953, and has not tried" to do so.

It is noted that as to number, the medical witnesses testifying, on behalf of plaintiff and on behalf of defendants are equal, that is to, say, four on one side and four on the other. It has often been státed in appellate decisions that where there is conflict in expert medical testimony the court is not bound by' the number of opinions on the one side or the other any more than it is bound by the number of lay witnesses who have testified to a controverted issue in the case. When such a problem is presented it is the duty of the court to arrive at the actual truth of the question involved whether the disputed fact is sought "to be proved by medical dr lay testimony, and the same rules apply in either .case insofar as the interest or want of interest of the witness, his opportunity for observation and his incentive for testifying are concerned. Johnson v. Hillyer, Deutsch, Edwards, Inc., La.App.1939, 185 So. 652.

After a.careful analysis of the testimony it is our opinion that the evidence as a whole, preponderates in favor of plaintiff. ■ It is not disputed that Williams suffered an injury which caused tenderness in the region of the left inguinal ring and this injury resulted in treatment which appears to have been broken off by the doctors designated by the employer when they suggested operative procedure to plaintiff. Although the doctors sought to explain this unusual procedure, stating that it was intended as a test of the sincerity of plaintiff’s complaints, no doubt it did frighten plaintiff into not returning for additional treatment. Neither Dr. Black nor Dr. McKeithen indicated in their testimony that they had discharged plaintiff when they suggested an operation. The record does not show the formal tender of an operation by" appellees and certainly the desire to- have plaintiff submit to an operation is contrary to the explanation given by Drs. Black and McKeithen. In his reasons for judgment the learned trial judge, for whose opinions we have the utmost respect, gave the following reasons for terminating plaintiff’s compensation at the end of a ten week period:

“On the other hand, if he had chosen to correct his disability by undergoing an operation, which we have reason to believe would have been a very simple one, then the court would .have provided that his operation be paid for and a reasonable amount of compensation provided for his period of recovery. As it is, the plaintiff has seemingly taken the position of just sitting down and waiting to get compensation.”

We do not agree with , the reasoning of the judge, especially since there is no evidence in the record that appellees tendered such an operation. But had such an operation been tendered, plaintiff’s legal position would have been sound, we believe, had he refused to submit to such an operation. This issue was resolved by this court in Johnson v. United States Fidelity & Guaranty Co. of Baltimore, La.App.1952, 58 So. 2d 261.

The essential fact to be determined in the instant case is whether plaintiff is disabled from, pursuing his employment and whether disability has persisted through the date of his trial. Some of the examining physicians differed in their finding’s as to whether the accident resulted in a potential hernia or whether it was complete or an incomplete hernia. It is not incumbent upon plaintiff in a workmen’s compensation suit to demonstrate exactly the disability which prevents him from performing his work. It is only necessary that he show the accident has resulted in some condition which incapacitates him from doing his work.

The- jurisprudence is well settled that in order to be entitled to workmen’s compensation, the worker is not expected to work in pain or when it will materially in-, crease not only the hazards to his own health and safety, but also to those of his fellow employees. The rule was recently so stated in Brannon v. Zurich General Accident & Liability Ins. Co., 1953, 224 La. 161, 69 So.2d 1, 3:

“In the light of the facts in the- instant case the plaintiff is, in our opinion, permanently and totally disabled within the meaning and contemplation of this law. The law does not expect, and it does not contemplate, that a worker, in order to make a living, must work in pain, or that he do so when it 'will materially increase hot only the hazards to his own health and safety, but also to- those of his fellow employees. This is the settled jurisprudence of all of the appellate courts of this state. See, Knispel v. Gulf States Utilities Co., Inc., 174 La. 401, 141 So. 9; Stiefifel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6; Carlino v. U S. Fidelity & Guaranty Co., 196 La. 400, 199 So. 228; Lee v. International Paper Co., La.App., 16 So.2d 679; Brown v. Furr, La.App., 19 So.2d 283; Schneider v. Travelers Insurance Co., La.App., 172 So. 580; Hibbard v. Blane, La. App., 183 So. 39; Rigsby v. John W. Clark Lumber Co., La.App., 28 So.2d 346; Murphy v. B. Mutti, Inc., La. App., 166 So. 493; Godeaux v. Travelers Ins. Co., La.App., 58 So.2d 427; Anders v. Employers Liability Assurance Corp., La.App., 50 So.2d 87; Stansbury v. National Auto & Cas. Ins. Co., La.App., 52 So.2d 300; and Newsom v. Caldwell & McCann, La. App., 51 So.2d 393. See, also, the additional authorities cited and discussed by, Malone in his work on the Louisiana Workmen’s Compensation Law and Practice, Sections 2724275.”

Counsel for appellees in brief invite our attention to the following authorities which it is argued, support the conclusions reached by the District Court: Gentry v. Gulf Public Service Co., La.App.1943, 11 So.2d 717; Davis v. Swift & Co., La.App.1953, 68 So. 2d 670; Higgs v. Monroe, La.App.1955, 77 So.2d 555; Richardson v. Tunica Hardwood Co., La.App.1955, 81 So.2d 470.

After reviewing these citations we do not consider them controlling in the instant case. Gentry v. Gulf Public Service Co. and Davis v. Swift & Co., involve -principally'the question of whether or not there was causal relationship between the alleged accident and plaintiff’s alleged disability. Richardson v. Tunica Hardwood Co. et al., involved a case where a great preponderance of the evidence was unquestionably in favor of the defendant, and to the effect that plaintiff was not suffering the disability claimed. Higgs v. Monroe presented a decision by this court which held that plaintiff had failed to establish his disability resulted from an, inguinal hernia. We think unquestionably the medical evidence in the cited case preponderated in favor of defendants. Therein four doctors testified as to the nonexistence of the disability as against, one testifying as to its existence. Another serious question raised in the -Higgs case was the occurrence of the accident. In the instant case there is no question concerning plaintiff having sustained an injury wdthin-the concept of the workmen’s compensation statute.

Penalties as provided under LSA-R.S. 22:658 which require payment of losses within sixty days after receipt of proof, of 12% damages and attorney’s fees, although claimed by plaintiff in his petition, are 'not seriously urged before this court; This claim, in our opinion, has little merit foras-much as we are convinced the defense in this case is a serious one and has been made with good cause.

It follows from our findings of fact and law as reported hereinabove, that plaintiff is entitled to compensation during disability not to exceed 400 weeks, and that accordingly the judgment from which appealed is hereby amended in accordance with our holding, and as so amended, it is hereby affirmed. The defendants are cast for costs.


author: AYRES, Judge.

text:
    John W. BAKER, Plaintiff-Appellee, v. Dewitt SMITH, Defendant-Appellant, A. K. Kilpatrick, Defendant, Woodlawn Development Corp., Defendant.
    No. 8464.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1956.
    Rehearing Denied May 21, 1956.
    Writ of Certiorari Denied June 29, 1956.
    Dhu Thompson, Monroe, for appellant.
    Paul Fink, Monroe, for Kilpatrick, defendant.
    George M. Snellings, Jr., Monroe, for Woodlawn, defendant.
    Hayes, Harkey & Smith, Monroe, for ap-pellee.
   AYRES, Judge.

This is a suit by plaintiff, a duly licensed surveyor, for the recovery of actual costs and expenses of making a survey of a certain tract or parcel of land, comprising 400 acres, more or less, located in Franklin Parish, Louisiana. The defendants are A. K. Kilpatrick, Woodlawn Development Corporation, hereinafter referred to as Woodlawn, and Dewitt Smith, who were allegedly associated in a joint venture of purchasing, surveying and selling said property. Alternatively, plaintiff alleged that Kilpatrick, at the beginning, and Wood-lawn, subsequently in the proceedings were principals, with Smith as their agent, and as such are obligated for the payment of his services, and, further alternatively, that Smith was liable individually, either on contract or quantum meruit. Plaintiff’s claim is based upon an agreement purporting to have been entered into, in two telephone calls made by Smith to plaintiff’s office, with his assistant in charge of his surveying operations.

All three defendants denied the existence of any joint venture, Kilpatrick and Wood-lawn contending that Kilpatrick simply bought the aforesaid property and sold it to Woodlawn and that Woodlawn simply purchased the property from Kilpatrick. Both denied having directly or indirectly employed plaintiff to make a survey of said property or that Smith was in any capacity acting as their agent relative thereto.

Smith answered and stated that he was contacted by Kilpatrick when Kilpatrick was negotiating for the purchase of the property; that he, without having made any arrangements or having acquired any interest whatsoever in connection with said property or any sale thereof, was with Kil-patrick when the latter visited and inspected said property with the view of purchasing the same. Lurking in his mind, however, was the hope that he might he able to assist in the resale of said property and be compensated for his services, in which connection he sought information from plaintiff’s office as to whether or not a survey of the property could be made by plaintiff and at what cost, which information he was unable to obtain and he thereafter dismissed the subject altogether; that Kilpktrick sold the property as a whole to Woodlawn Development Corporation and that he assisted in its resale by Wood-lawn without pay or compensation because of financial obligations due Woodlawn in connection with other projects and property situated in Florida and Alabama. Smith particularly denied that he entered into any contract with plaintiff or his representative for the surveying of said property or that he directed plaintiff to proceed with such survey, contending that the sum and substance of his conversation was limited to the procuring of information as to when a survey could be made and as to the cost thereof; further, that he knew nothing of the survey having been made until about the time the last of the property had been sold by Woodlawn, and that the survey was of no use or benefit and was not used by him. In the alternative, defendant plead that plaintiff’s claim was excessive, unreasonable and out of proportion to the services allegedly performed.

The trial judge concluded that the transaction did not involve a joint venture between the defendants or that Smith was the agent of either Kilpatrick or Wood-lawn Development Corporation, but found that Smith had ordered the survey made. Accordingly, judgment was rendered in favor of plaintiff and against the defendant, Smith, for the sum of $1,333, as prayed for, but his demands, as to the other defendants, were rejected.

From the judgment thus rendered and signed, only the defendant, Smith, has appealed. The question of liability of Kil-patrick and Woodlawn has, therefore, been foreclosed so far as this appeal is concerned. The liability vel non of the defendant, Smith, is the sole .question submitted for determination.

When Kilpatrick began negotiations for purchasing this property, the fee ownership was in these parties and in the following proportionate interests:

Jones-O’Brien, Inc..■. 12.50%
J. M. Hazlewood.• 25.00%
Nemours Corporation. 12.50%
Donald M. Reese.'. 5.00%
V. S. Parham . 5.00%
John M. Halko. 7.50%
C. W. Sharp. 32.50%,

with 50% of the mineral ownership in said parties, the other 50% mineral ownership being in Mrs. Catherine Greer Munk and Mrs. Elizabeth Greer Norvell, less lie minerals on the E% of NWj4, Section 19 of said tract conveyed by Mrs. Munk and Mrs. Norvell to James M. Forgotson. The royalty ownership was the same as the mineral ownership except C. W. Sharp had conveyed %20 royalty interest to Clifford Mooers, trustee for Maria Dolores Mooers, all of which was subject to a mineral lease of June 5, 1945, granted tp James M. For-gotson.

On the occasion of a visit to Baton Rouge Kilpatrick was contacted by C. W. Sharpj one of said owners and who was apparently in charge of said property, and was offered said property for a price of $25 per acre. On "returning to Monroe, Kilpatrick visited the property and entered into negotiations with the aforesaid owners, with the view of purchasing said property. An agreement was reached, whereby this property was sold to Kilpatrick for $9,000. Accordingly, a deed was executed to Kilpatrick and attached to a draft for the ..purchase. .price and forwarded to Ouachita National Bank for delivery to Kilpatrick after approval of title and payment of the draft.

Prior to consummating the deal, negotiations were begun between Kilpatrick and Woodlawn, through L. M. Ray as its presi-, dent, for the, purchase of said property by that corporation. An agreement was reached between thejn whereby Woodlawn purchased the property from Kilpatrick, and, in consideration therefor, paid the draft of the former purchasers drawn on Kilpatrick and executed in favor of Kil-patrick a promissory note for $2,500. This sum may be said to represent Kilpatrick’s profit.

Thereafter, Smith assisted Woodlawn in selling said property, in tracts. of either 40 or 80 acres each, to eight local residents. Smith likewise assisted in the sale of the timber on said land in the same manner by procuring a purchaser. For his services Smith received no specific compensation other than in consideration of advances theretofore made him to the extent of approximately $2,400 as expenses in connection with transactions already referred to concerning property located in south Alabama and northern Florida.

We have referred to these facts as established by the record for the purpose of throwing some light, if they do, upon the question now before us as to whether or not defendant Smith ordered and directed a survey of the property in his individual capacity, if, indeed, such a survey was ordered, and, in any event, whether or not he incurred any personal liability in that regard. The record, in our opinion, shows conclusively, and it is not contended otherwise, that Smith neither had, nor acquired, any interest in this property by virtue of any of these transactions; at the time, he was not the agent of either Kilpatrick or Woodlawn. It was only after Wood-lawn acquired the property that his services were engaged in its resale. There is no basis on which to claim that Smith had an interest in the property to justify his ordering a survey for his own use and benefit. It is urged that it would appear most unreasonable to conclude that plaintiff would have undertaken the costly services performed without some assurance of payment from a responsible source. It would appear, however, just, as inconceivable, and unreasonable to conclude that defendant would have, on his own initiative and personal responsibility, ordered and directed a survey of the property-in which he was wholly without interest. These assumptions, offsetting or balancing one another, are insufficient to establish liability on the part of defendant.

Necessarily, therefore, if .Smith is to be held individually liable, his liability must be established through the aid of additional proof. On that phase, plaintiff relies upon the establishment of a contract by the two telephone conversations between defendant Smith and his associate, Glen Baker. Only these two were in possession of first-hand information as to the nature and object of these conversations. It is apparently conceded that no agreement was entered into by virtue of the first conversation. There is considerable controversy, however, as to the nature of the second conversation, Baker contending that Smith insisted that the survey be proceeded with without delay, and as adamant to the contrary is the testimony of .Smith, who emphatically denied that he authorized Baker to make this survey. Whatever was intended to be accomplished by the telephone conversations, we are not convinced that the evidence preponderates to the effect that Smith was obligating himself or that Baker so understood at the time. Too, it may be observed that Smith did not give Baker a description of the property and he denies that he advised that a description could' be obtained from Benjamin I. Berry, an attorney of Winnsboro, from whom plaintiff, claims the description was obtained for the purpose of making the survey.' It is noteworthy, also, that Berry examined the title to this property and addressed his title opinion to C. W. Sharp and J. M. Hazlewood, % Ouachita National Bank, Monroe, Louisiana, in which he stated:

“Gentlemen:
“In connection with your proposed transaction covering your property in Franklin Parish, I hand you herewith my, title opinion on said property, * iji ' * »

The testimony of neither Sharp, Hazlewood nor Berry was taken to explain Berry’s connection with this transaction or his employment to examine the title or the circumstances surrounding the -giving of the description to Baker for the purpose of the survey, particularly as it appears that Smith did not know Berry until after the survey had been made. Berry experienced some difficulty in obtaining payment for his title examination. However, Woodlawn finally paid the charges inasmuch as Berry’s opinion was used by the bank’s attorney in approving title in Woodlawn in connection with its application for a loan.

Plaintiff experienced similar confusion in determining to whom it should present its bill for the survey. Eventually, upon Berry’s representation that his fee was being paid by Woodlawn, that corporation was billed for plaintiff’s services, and payment being refused, both Kilpatrick and Smith were contacted, when payment was again refused. Whereupon this suit followed. The language of plaintiff’s petition and the many alternatives upon which the claim is based are indicative of plaintiff’s indecisive position as to the real ob-ligor.

The burden of proof to establish its claim by a clear preponderance is upon plaintiff. Notwithstanding the opinion of our learned brother of the District Court to the contrary, we' are unable to conclude that plaintiff has supported its'demands as against this defendant to that degree' of certainty as -would warrant á judgment against him. We are not unmindful -of the reluctance of appellate courts to reverse a trial court upon questions of fact. Where, however, our consideration and appreciation of the record convinces us of a different-result, we are justified -in the -conclusion that manifest error has been committed, whereupon it- becomes- our duty and obligation to render such judgment--as," in our opinion, is warranted by. the proof adduced in the case.

For the reasons herein assigned, the judgment appealed is annulled, avoided, reversed and set aside, and, accordingly, plaintiff-appellee’s demands are , rejected and his suit is dismissed at his cost.

- Reversed.


text:
    Harrison M. RACHOW et al., Plaintiffs-Appellants, v. C. O. RINGWALD et al., Defendants-Appellees.
    No. 8495.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    Rehearing Denied May 21,1956.

      Dhu and Lea S. Thompson, Monroe, for appellants.
    Theus, Grisham, Davis & Leigh, Monroe, for appellees.
   AYRES, Judge.

In this action plaintiffs, Harrison M. Rachow and his collision insurer, seek to recover the sum of $107.37 from the defendants, C. Q. Ringwald, his wife, Helen H. Ringwald, and their insurer, for damages sustained to the Rachow Ford automobile as the result of a collision occurring at the intersection of Walnut and Pine Streets in the City of Monroe during the noon hour on March 16, 1955.

From a judgment rejecting plaintiffs’ demands, an appeal was taken to this court.

Walnut Street is a right of way street and traffic on Pine Street is required by City ordinance to come to a stop before entering its intersection with Walnut Street. At the time of the accident plaintiff Rachow was driving his automobile north on Walnut Street and Mrs. Ringwald was driving the Ringwald Dodge east on Pine Street. Plaintiff charges the defendant, Mrs. Ringwald, with negligence in proximately causing the accident in failing to observe the stop sign on Pine Street and in driving her automobile into the aforesaid intersection without first coming to a stop and ascertaining that it was safe for her to do so; in failing to yield the right of way to plaintiff’s vehicle when she saw, or should have seen, his automobile entering the intersection; in driving her vehicle directly into the path of the plaintiff’s oncoming automobile and in failing to keep a proper lookout or to keep her car under proper control.

Plaintiff’s contentions were controverted by the defendants, who alleged that the sole and proximate cause of the accident was the negligence of the plaintiff in failing to maintain a proper lookout or to have his automobile under proper control, in driving at an excessive rate of speed and in failing to accord the defendant, Mrs. Ringwald, the right of way at the intersection, which it was claimed she had previously entered and pre-empted. In the alternative, defendants plead that plaintiff Rachow, in the aforesaid respects, was guilty of contributory negligence.

The sole question presented for determination is whether the defendant, Mrs. Ringwald, was negligent and, if so, whether plaintiff Rachow was guilty of contributory negligence. The drivers of the two automobiles involved were the only witnesses to the accident. The record establishes that Mrs. Ringwald was driving east on Pine Street and, upon approaching the intersection of said street with Walnut Street, she brought her car to a stop behind another car, also proceeding east on Pine Street, which had stopped and was awaiting the clearance of traffic in the intersection; that after the forward car had proceeded across the intersection, she advanced her vehicle to the intersection and came to a stop, after which she looked in both directions, first to the south and then to the north, and, seeing no cars approaching, proceeded to cross the intersection. She stated, however, that she could not see “too far” to the south because her view was obstructed by cars parked on a used car lot on the corner. ' Mrs. Ring-wald further testified she did not see plaintiff’s vehicle before it struck her car on the right front fender, then advanced slightly beyond the middle of the intersection. Her belief was that her view was further obstructed by the presence of another car parked at the curb on Walnut Street in the direction from which plaintiff’s car was approaching.

It could not be seriously disputed that Mrs. Ringwald was guilty of negligence in failing to observe the approach of plaintiff’s vehicle. Plaintiff’s testimony that he was proceeding at approximately 20 miles per hour is not controverted and such speed is well within the limits as provided by ordinance. The cause of Mrs. Ring-wald’s failure to observe plaintiff’s car, whether due to a blind corner or to her failure to look, is immaterial. Had she been keeping a lookout and making proper observation, she would have no doubt seen plaintiff’s car. It was approaching the intersection and was there for her to see. The jurisprudence is well settled on the proposition that a motorist is held to the duty of seeing what he should have seen, and that a motorist, when confronted with a stop sign erected by the proper officials of a city, in addition to being legally obligated to bring his vehicle to a stop before entering a right of way street, is held to the duty of appraising traffic conditions in the intersection and of making certain that the way is clear for him to make a safe passage across the intersection. In merely stopping his vehicle before entering an intersection, he has performed only half of the duty which the law imposes upon him. To stop and then proceed into the intersection in the immediate path of approaching traffic constitutes gross negligence.

Pertinent here is an expression of this court through the late Judge Taliaferro in Glen Falls Ins. Co. v. Copeland, La.App., 28 So.2d 145, 147:

“A motorist, before attempting to cross a right of way street, is legally required to bring his own car. to a complete stop on the less favored street so that he may observe traffic conditions in both directions. It has often been held that for a motorist to merely stop before attempting to enter a right of way street, he performs only one-half the duty that rests upon- him. To stop .and then proceed forward without having.sufficient opportunity to determine if it is safe to do so, is negligence of a gross character, and renders the person guilty of such responsible for damages resulting therefrom.
“According to defendant’s own pleading and testimony, from the position he was in when' he stopped west of the intersection, he was unable to clearly observe traffic conditions northerly on Fairfield Avenue, but notwithstanding this inability he undertook to cross the intersection, taking the chance that resulted in the collision.”

A similar conclusion was reached in Mese v. Summers, La.App., 170 So. 510, 512, wherein it was stated:

“Although plaintiff was entering and crossing a right of way street, yet he admits that he did not see this yellow cab coming toward the intersection until he was struck north of the center. Obviously, he was not keeping a proper lookout. The driver of a car crossing a right of way street must exercise that degree of care commensurate with the superior right, of the driver on the right of way street. This implies that the driver, when crossing a right of way street, must exercise care in observing the cars on the right of way street so as to determine their speed, position, and manner of operation.”

See also Hooper v. Toye Bros., Yellow Cab Co., La.App., 50 So.2d 829; White v. Glass, La.App., 78 So.2d 57.

Defendants’ contention that Mrs. Ringwald had pre-empted the intersection is not established by the evidence. As stated heretofore, she was on an unfavored street while plaintiff was traveling on a right of way street. The accident occurred in plaintiff’s lane of traffic when the Ring-wald car had proceeded slightly beyond the middle of the intersection. Under the circumstances, Mrs. Ringwald entered the intersection without sufficient time or opportunity of completing said crossing without obstructing traffic proceeding under normal and reasonable circumstances and conditions on the right of way street. Moreover, where an intersection involves the passage across a favored street, an obligation of unusual care and caution oh the part of drivers of vehicles on the less favored street shoüld be enforced. Butler v. O’Neal, La. App., 26 So.2d 753. That Mrs. Ringwald failed to exercise that degree‘of'caution required under the circumstances is amply shown by the record. We, therefore, conclude that Mrs. Ringwald was guilty of negligence.

The issue is, therefore, narrowed to the proposition of contributory negligence vel non on the part- of plaintiff. Plaintiff Rachow’s version of the accident is that he was proceeding north on Walnut Street during the noon hour, ' He contends he was driving in a line of traffic two car-lengths behind the car in front of him, followed by other cars proceeding in the same direction; that, as he approached the intersection at approximately 20 miles per hour, he met a car leaving the intersection and traveling south, It is his position that the Ringwald car came into the intersection from behind this car, which, constituted an obstruction to his view and prevented. his seeing the defendants’ car until after .it had reached.the middle of the intersection. At that time plaintiff’s car was entering the intersection. The only possible conclusion that may be drawn from the facts is that plaintiff, driving at a reasonable ráte of speed on a right of way street, could have seen, but did not see, the Ringwald car crossing the intersection until the defendant car was slightly beyond the middle of the intersection, from which the ultimate conclusion necessarily follows that plaintiff was not keeping a proper lookout, otherwise, he would have taken precaution to have avoided the accident, which, at his rate of speed, it would appear he had ample time to do. Such conduct on his part constituted negligence constituting a proximate cause of the accident, and although such negligence was concurrent with the negligence of the driver of the defendant automobile, he is precluded from recovering damages resulting from the collision. It was so held in Wyche v. Brian, La.App., 28 So.2d 143, where the actions of the plaintiff are strikingly similar to plaintiff’s actions in this case. That case involved a collision between plaintiff’s vehicle, proceeding north on Greswell Street, a right of way street, in the City of Shreveport, and defendant’s vehicle, entering an intersection with Wilkinson Street, an inferior street. There, defendant brought her automobile to a stop before entering the intersection, from which point, she testified, she did not observe any traffic approaching on the right of way' street. She then -proceeded into the intersection but did not see plaintiff’s car until the moment of the impact,' which took place a few feet beyond the center of the intersection. Plaintiff testified ’he did not see defendant’s automobile until he was about six feet away. There- was no obstruction that interfered with the view of either • plaintiff or defendant: It-was Reid that had either been keeping a proper and reasonable lookout, the approach of the other could have been observed. The court stated, 28 So.2d 144:

“Plaintiff in this, case is barred from recovery despite the negligence of defendant by the fact that he, too, was guilty of the same character of negligence in failing to keep a proper lookout and to see what he should have seen. In Stuckey v. Hayden, La.App., 3 So.2d 443, the Court stated this rule of caution to the effect that the right-of-way which a motorist is accorded on a through street did not confer upon him the correlative right to ignore the rights of others.”

Consequently, both parties were found guilty of concurrent negligence constituting the proximate cause of the accident and both were barred from recovery.

To the same effect was the holding in Dickinson v. Hammett, La.App., 30 So.2d 152. See also Comeaux v. Blanchet, La. App., 69 So.2d 527, wherein our -learned brethren of the First Circuit Court of Appeal, after quoting from decisions of this court, cited Gray v. Southern Auto Wreckers, Inc., La.App., 166 So. 154; Wilkinson v. Great American Indemnity Co., La.App., 43 So.2d 22, and Lake Charles Stevedores, Inc., v. Streater, La.App., 6 So.2d 242, and concluded:

“Our own decisions in cases of this kind arising out of intersectional collisions have uniformly required that drivers approaching or entering an intersection, whether on the favored highway or not are required, to maintain a proper lookout.” [69 So.2d 532.]

As justifying his failure to see the defendant’s car, plaintiff contends that as he was entering the intersection he met a car - leaving the intersection proceeding south on Walnut Street which obscured and obstructed his view Of the Ringwald car until it had advanced slightly beyond the middle of the intersection. ,-The physical facts tend to refute this contention. In the first place, plaintiff was traveling about 20 miles per hour,' whereas the Ringwald car, having to start from stop, would necessarily have had to travel a greater distance across the intersection than plaintiff traveled, continuing, uninterrupted at his rate of speed. Therefore,, if plaintiff met such other car, it had, in all probability, already cleared the intersection in time for Mrs. Ringwald to proceed from a stop position into the intersection and well therein when plaintiff made his entry. It is, therefore, evident that plaintiff could have seen the Ringwald car before it had advanced to the middle of the intersection. He does not contend there was any other obstruction to his view.

We conclude, therefore, that plaintiff was guilty of the same character of negligence in failing to keep a proper lookout and to see what he should have seen, as was •charged to defendant, Mrs. Ringwald. The mere fact that the right of way was accorded him while traveling on a through street •did not confer upon him any additional right to ignore the rights of others. His negligence aforesaid contributed directly to the accident and, accordingly, the plea •of contributory negligence is well founded and is sustained.

Accordingly, the judgment appealed is affirmed at appellants’ cost.

Affirmed.


author: HARDY, Judge.

text:
    SUCCESSION OF Mrs. Eloise McFarland Weltner BROWER, Plaintiffs-Appellants, v. STATE of Louisiana, Defendant-Appellant.
    No. 8262.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    Rehearing Denied May 21,1956.
    Writ of Certiorari Denied June 29, 1956.
    See also 87 So.2d 183.
    McIntosh, Hester & Gilfoil, Lake Providence, for plaintiff-appellant.
    Carey J. Ellis, Jr., Rayville, for defendant-appellant.
   HARDY, Judge.

This case is now before us in accordance with judgment of the Supreme Court remanding the case to this court for judgment on the merits of the appeal, 228 La. 785, 84 So.2d 191.

The history of this case, and a companion suit with which it has been consolidated for trial and hearing through the trial and appellate courts, comprehends almost every character of continuance, delay, postponement, trial, retrial, appeal and remand known to our procedural law, and, though numerous ramifications concern details of some interest, we do not perceive that the relation thereof would provide any substantial or material benefits to the development and determination of the issue to which the matter has been finally reduced.

This proceeding was instituted' by the heirs of Eloise McFarland Weltner Brow-er, wife of David McCoy Brower, by petition filed September 16, 1949, in which 'the heirs of the decedent, alleging that no inheritance tax on the succession of their deceased mother was due the State, prayed to be placed in possession of the property belonging to the decedent’s estate.

Eventually, in answer to the rule, opposition was made to petitioners’ application by the attorney appointed to represent the Sheriff and Ex-Officio Inheritance Tax Collector for the Parish of West Carroll. On appeal to this court, from a judgment fixing an inheritance tax, we sustained a plea of prescription filed on behalf of the applicant heirs, La.App., 80 So.2d 217. The Supreme Court granted writs and rendered judgment reversing the judgment of this court, overruling the plea of prescription and remanding the case for the purpose of determining and fixing any tax which might be due, 228 La. 785, 84 So. 2d 191.

Eloise McFarland Weltner Brower died November 17, 1925, leaving as succession property only her interest in the community estate existing between herself and her surviving husband, David McCoy Brower, who died July 9, 1928. On September 16, 1949, the five children and sole heirs of the named decedents filed applications in the Fifth District Court of West Carroll Parish seeking to be recognized and placed in possession of the respective successions of their deceased parents, and, in connection with such applications, alleged their acceptance of the succession purely, simply and unconditionally. A rule against the Inheritance Tax Collector was sought and issued for the purpose of determining and fixing the amount of inheritance taxes, if any, which might be due the State of Louisiana on the estates of the decedents.

In connection with the original application petitioners attached sworn lists of properties and values thereof. Prior to the appointment of special counsel who represents the Inheritance Tax Collector, the Judge of the District Court noted that certain valuations were fixed in the applicants’ sworn statement in amounts less than the assessed valuation of the properties at the time of the death of the decedent and declared that he would not sign a judgment fixing any valuation at a figure less than the assessment. Whereupon applicants withdrew their original statement and substituted another based upon the assessed valuations. In the further course of the proceedings the minutes show entry of the following order of court:

“It is ordered that this case be and it is hereby re-opened for the reason that the evidence is insufficient, incomplete and conflicting to such an extent that a proper judgment cannot be rendered, and for the further reason that a casual examination of the public records in the Clerk’s Office disclose much information necessary to the determination of this case.
“It is further ordered that the Clerk produce and file in the record all suits for or against D. M. Brower; all deeds, to or from D. M. Brower; all mortgages to or by D. M. Brower, with dates of cancellation of notes; all chattel mortgages to or by D. M. Brower, with dates of cancellation of'" notes; all crop liens'or privileges to or 'by D. M. Brower, with dates of cancellation; all assessménts of personal property; and all notes of kny kind to or by D. M. Brower.1 All of the above information to cover the period-from January 1, 1912, to January 1, 1929.”

Responsive to the above order the clerk prepared and filed certified copies of a large number of instruments of the character designated in the order, which make up. some- 250 pages, more or less, of the voluminous record now before .the court. We find that, with few exceptions, none of the documents were introduced and admitted in evidénce, nor do we find that they constitute any material or relevant evidence in connection with the issue under examination.

In the interest of clarity we wish to observe at this point that the only issue which is before us for consideration involves the determination'of the property and value thereof belonging to the succession of decedent upon the date of her death, November 17, 1925, for the purpose of fixing the inheritance tax thereon due and payable by the heirs of decedent. In this connection we further comment on the extreme difficulty, which is evident from consideration of this record, of fixing with any accuracy or certainty, whatsoever, either the identification or the value of properties after the lapse of approximately 25 years.

Some time subsequent to the filing of petitioners’ application, the Honorable Carey J. Ellis, Jr. was appointed as attorney for the Inheritance Tax Collector, and, upon motion by counsel for applicants, the Honorable C. J. Ellis, Judge of the Fifth Judicial District Court recused himself and appointed Honorable Frank Voelker, Judge ad hoc.

The learned judge ad hoc, taking into consideration the two' sworn statements of valuation of properties and valuation fixed by applicants, together with the testimony adduced and evidence admitted on trials, and in further consideration of an order entered folio,wing a pre-trial conference, fixed the value of the decedent’s one-half community interest as- follows:

1. Total real estate $55,255.00
2. Personal property 2,630.00
3. Mortgage and vendor’s lien mortgage notes described in pre-trial conference.order entered November 12, 1952 ■ ■ 9,143.8£j
4. Checking account in bank at • Oak Grove, Douisiana 800.00
Total community estate . $67,828.88
, Decedent’s one-half interest 33,914.44
Less funeral expenses 500.00
Net estate of decedent $33,414.44

Upon the basis of the above recapitulation of properties and valuations, after making allowances for the exemption of each of the applicant heirs to the extent of $5,000, the taxable value of the interest-of each heir was determined as being $1,682.89, and judgment was rendered against each heir for a tax of $33.66 with legal interest thereon from date of September 16, 1949, until paid, together with all costs.

Counsel for the Inheritance Tax Collector urgently contends that the following items and values should be added,- as follows:

“A. Bank account proven by W. P. Crawford $23,000.00
B. Items - - omitted by pre-trial .order 2,401.59
C. Annual farm rental 1,000.00
$26,401.49”

The contention for the allowance of the above items would serve to raise the total value of the estate from the figure of $67,828.88 allowed by the court to a figure of $94,230.47.

We proceed to a discussion, seriatim, of the items above set forth.

Counsel contends that the existence of a' cash asset of $23,000 was “proven” by. the testimony of one W. P. Crawford which was taken on the .second trial -of the case on November 7, 1952. The witness was president of the Macon Ridge National Bank between the years 1917 to-1932; was personally acquainted with D. M. Brower, who was a depositor of the bank, and testified that he had a distinct recollection of one particular transaction as the result of which the said D. M. Brower placed on deposit in the named bank a sum of some $22,000 to $24,000,-represented by draft on a bank in Lake Village, Arkansas. ,Mr. Crawford testified that this deposit was made sometime “prior to 1927” becapse he- recalled that the money was used, together with additional sums borrowed by Mr. Brower, during the flood of 1927 for the purchase of cattle. Counsel contends, upon the basis of this testimony, striking an average between the figures given by the witness, that the sum of $23,000, representing cash on hand, should be added to the estate of Mrs. Brower, who died November 17, 1925. The only possible support for this position-which we find after careful examination of the testimony of the witness, Crawford, lies in the following question and answer:

“Q. Had the money been on deposit there as much as a year? A. It may have been two years. I couldn’t swear to it.”

We cannot conceive that this equivocal statement, based solely upon a sketchy recollection after the lapse of 25 years, serves to provide, even under the most liberal interpretation, that degree of certainty which is required as a predicate for acceptance as proof. Such a conclusion would necessitate a holding that because a certain indefinite sum of money was deposited in a bank and was used in a given year by the depositor that the deposit was made 18 months before it was used. In other words, counsel asks us to hold that money was on deposit in a certain bank on November 17, 1925, because the money was used sometime during 1927 and, according to the testimony of this witness, the deposit may have been in existence two years, before- it- was- actually used by the depositor. -We think the acceptance of such a contention would do violence to every reasonable rule of evidence and -would be equivalent to the acceptance of conjecture, speculation •’ and supposition. It follows-that,' in our opinion, the’ allowance of this* item was correctly rejected by the trial judge.

A similar contention was made with reference to the items under (b) as set forth above. These items consist of payments made.by debtors on four real estate mortgage obligations and five chattel mortgage and crop lien debts, which nine items vary in amount from $33 to $900 and make up an aggregate of $2,401.59. Counsel urges that these amounts, received within a period of one and one-half months immediately preceding Mrs. Brower’s death, must have been on hand at the time of her death and, therefore, should be included in the community estate. The principal basis for this claim is that such sums of money received by D. M. Brower, who was notoriously conservative to the point of being considered “tight-fisted”, would not have been expended within a period of approximately 45 days. This, again, is pure speculation and, at best, mere probability. In lieu of any positive and definite evidence we think the items noted were correctly disallowed.

Finally, and upon much the same basis, counsel seeks the allowance of an annual farm rental, in the nature of crop shares, estimated at $1,000. Again we observe that there is no positive evidence of any nature or degree with reference to the existence of this estimated amount as an asset of Mrs. Brower’s estate at the time of her death.

Thorough consideration of the intricate details reflected by the record before us fails to demonstrate any error on the part of the judge ad hoc in his determination of the assets and values chargeable to the decedent’s estate. It is pertinent to observe that our brother of the trial court was in a' much more advantageous position to make these determinations as the result of firsthand impression than are we who are confined to the examination of a confusing welter of claims and counter-claims which have been made more obscure by the passage of more than a quarter of a century of time. We are both sensible of and sympathetic with counsel’s claim that these uncertainties and obscurities are chargeable to the laches of these heirs in their inexcusable delay with respect to the opening of this succession, but laches, by itself, is not a substitute for proof.

Industrious counsel finally argues that the burden of proof in a proceeding of this nature lies upon the taxpayer, citing that portion of LSA-R.S. 47:2406 reading as follows :

“The burden of proving facts establishing exemptions from the tax imposed by this Part is upon the person claiming the exemption.”

Unquestionably, the burden above defined would be appropriate with reference to exemptions claimed as against assets established as having existed at the time of death. Since, according to our view, the State has failed to establish by acceptable proof the existence of the assets contended, it follows that there is no obligation upon the applicants from which they are required to discharge themselves by any proof whatsoever.

The final issue which is tendered for determination involves the question of the allowance of penalties under the provisions of LSA-R.S. 47:2420, providing for interest on delinquent taxes at the rate of 1% per month beginning six months after date of death and 2% per month beginning 12 months after date of death. The facts in the instant case are somewhat similar to those involved in Succession of Bolan, 158 La. 911, 105 So. 10. In the cited case the wife predeceased her surviving spouse in community by some fourteen years and upon the death of the husband the heirs opened the successions of both parents. The contention was made that the tax on the succession of the decedent wife was delinquent and the penalty interest thereon should be imposed. The lower court refused the penalty, which action was affirmed by the Supreme Court on the ground that the inheritance from the mother represented nothing more than the naked ownership of an undivided interest in the property belonging to the community. This ruling has been accepted by counsel for respondent tax collector in the instant case, who further concedes that the fixing of inheritance taxes has been highly contested since the filing of petitioners’ applications on September 16, 1949. Accordingly, counsel generously suggests that taxes due be assessed, with penalty interest, only from the date of the death of the husband, D. M. Brower, June 9, 1928, up to the date of the filing of these applications on September 16, 1949. In conformity with this proposal counsel has correctly calculated the. period during which penalty would run. The total elapsed time from June 9, 1928 to September 16, 1949 figures 255 months. Deducting the six-month period immediately following death leaves a total of 249 months during which the penalty interest should be calculated at 1% per month for six months and 2% per month for the remaining period. Reducing these percentage and time factors, the aggregate accrued penalty amounts to 492% of the tax adjudged to be due.

Under the facts of the instant case we are convinced that the imposition of the statutory penalty interest should be allowed and it follows that the judgment must be amended to this extent.

For the reasons assigned the judgment appealed from fixing the principal amount of tax due by each of the applicant heirs in the sum of $33.66 is affirmed, but it is further ordered, adjudged and decreed that the judgment be amended by allowing penalty interest on the principal amount as above set forth, and against each of the heirs to the extent of 492% of said principal in addition thereto, and, as amended, the judgment is affirmed at applicants’ cost.