text:
    John F. RAMSEY et al., Plaintiffs-Appellees-Appellants, v. R. L. McDANIEL et al., Defendants-Appellants-Appellees.
    No. 8332.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    Writ of Certiorari Denied March 1, 1956.
    P. A. Bienvenu, New Orleans, for plaintiffs-appellees-appellants.
    Theus, Grisham, Davis & Leigh, Dhu & Lea S. Thompson,-Monroe, for defendants-appellants-appellees.
    Sevier, Yerger & Sevier, Tallulah, for Southern Bell Tel. & Tel. Co., Inc., defendant-appellee.
   GLADNEY, Judge.

The instant case arises from an automobile collision which occurred about four miles south of Newellton, Louisiana, on U. S. Highway No. 65, March 3, 1950, shortly after 3 :00 o’clock P. M. Involved in- the accident were. John F. Ramsey, an employee of the Newellton Hardwood Lumber Company who was driving north a Jeep, and R. L. McDaniel, an employee of the Southern Bell Telephone and Telegraph Company, Inc. The latter was driving' south in a Ford automobile. The two vehicles crashed into each other. Ramsey was seriously injured and McDaniel also received personal injuries.

In the instant case John F. Ramsey and the Employers Mutual Liability Insurance Company sue R. L. McDaniel and the Southern Bell Telephone and Telegraph •Company, Inc. The Employers Mutual Liability Insurance Company seeks the recovery of payments made by it to Ramsey under the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq. In a companion suit, No. 8340 on the docket of this court, entitled McDaniel v. Ramsey, La.App., 84 So.2d 282, McDaniel and his liability insurer, Service Fire Insurance Company of New York, instituted an action against Ramsey, the Newellton Hardwood Lumber Company and the latter’s liability insurer, The Fidelity Mutual Insurance Company. Both cases involve claims for personal injuries and property damage sustained in the accident. The two suits have been consolidated for trial and argument.

When the accident happened a slow rain was falling but the atmosphere was clear hnd visibility good. The blacktopped highway connects Newellton and St. Joseph in Tensas Parish and runs generally 'in' a northerly and southerly direction. At the scene of the collision the highway is level and is in a slight curve, which, however; does not affect visibility up to a distance'of 250 yards.' At this point the hard Surface is 19 feet wide with shoulders of T a'nd 8 feet on the east and west sides respectively. The highway is not marked by a center line. It has a crown with elevation of 4 inches. When the cars crashed the pavement was bumpy and wet and slippery.

! Plaintiff Ramsey testified that he was driving the Jeep automobile north along ■said highway at .a speed of about 25 miles •pet-, -hour and traveling 'entirely on his '¡right- or the .east s.ide of said highway ¡vyjíen..' M.cDaniel, driving. a Ford, automobile at .¡an excessive,,.rate of .s.pe.ed .and meeting the Jeep, cut or turned into Ramsey’s lane of traffic and thereby caused the accident. The testimony of McDaniel is to the effect that he was driving south wholly within his lane of traffic, the west side of the highway, at a rate of speed which he stated to be between 50 and 60 miles per hour, when he observed the approaching Jeep about one-fourth of a mile away driving in the center of the road; that as the Jeep came closer it angled more to its left but he thought it would turn back into its proper traffic lane; and that when the two vehicles were from 75 to 100 feet apart he endeavored without success to avoid the collision.

After a trial on the merits, the district court resolved that Ramsey and McDaniel were each guilty of negligence but that McDaniel definitely had the last clear chance to avoid the collision and accordingly- rendered judgment against McDaniel. The court also sustained the special defense, by Southern Bell Telephone and Telegraph Company, Inc., that McDaniel was not acting within the course and scope of his employment at the time of the accident, and rejected plaintiffs’ demands against Southern Bell Telephone and Telegraph Company, Inc. From the judgment so rendered McDaniel and plaintiffs have appealed. Ramsey died pending this appeal and his widow and daughter have been substituted as survivors to the right of action under LSA-C.C. art". 2315.

We first turn our attention to consideration of a motion to dismiss the appeal. Such a motion has been filed by Southern Bell Telephone and Telegraph Company, Inc. Mover principally relies upon the decision in McConnell v. Webb, 1954, 226 La. 385, 76 So.2d 405, 407. Therein pending the appeal- McConnell died and his widow was appointed admin-istratrix of her husband’s succession, and „in that capacity filed .a motion to be permitted to prosecute the suit as plaintiff-ap.pellant.'. After argument on a motion by •the defendant to abate the appeal, the Supreme-'Court held ¡that the .action .was on.e ■,in,;tórt and'.did jiot .survive the -dea,th of plaintiff, and that the firmly settled rule that a personal nonheritable action for damages in tort abated with the death of the party litigant has not been abrogated. The court observed the repeated amendments to LSA-C.C. art. 2315, which from time to time have provided for survival of tort actions in certain designated persons and stated:

“ * * * And in this connection it may be well to observe at this point that it is not any of the survivors of the deceased plaintiff, named in Article 2315 of the LSA-Civil Code, who is seeking to prosecute the appeal in this case, but the widow who is appearing solely in her capacity as ad-ministratrix of his succession. Any award that might be made therefore may not go to any of the decedent’s beneficiaries under Article 2315 LSA-C.C., but to his estate and for the benefit of his creditors, if any, or any other interested parties as well as his heirs. * * * ”

We note that LSA-R.S. § 3349 reads as follows :

“There are no exceptions to the rule that an action does not abate by the death of one of the parties thereto after suit has been filed. This section shall apply to all actions now pending as well as those which may be hereafter instituted. No act of the legislature heretofore passed, nor any acts hereafter passed shall be construed as making an exception to this rule, unless such act specifically and specially makes an exception thereto. (Acts 1946, No. 239, Secs. 1-5; 1954, No. 59, Sec. 1.)”

Prior to the 1954 amendment, LSA-R.S. 13 -3349 and Code of Practice art. 21 included language that “There are no exceptions to the rule that an action does not abate by the death of one of the parties thereto after issue joined * * (Emphasis supplied.) We think it was not the intention of the Supreme Court in McConnell v. Webb to annul the plain provisions of LSA-C.C. art. 2315 which expressly provide for survival of a tort action in favor of a widow and children and others therein expressly .named. The cited case merely holds that a tort action does not survive in favor of the administratrix of the succession. Accordingly, the motion to dismiss the appeal is denied.

Now we revert to the factual and legal issues herein presented. Plaintiffs allege in support of their cause of action that McDaniel was negligent in driving at an excessive rate of speed on the slick, wet, blacktopped road, in failing to keep a proper lookout, and in suddenly turning into the path of Ramsey’s automobile. In addition to the above specifications of negligence plaintiffs invoke the last clear chance doctrine. To the contrary Ramsey is charged by defendants with negligence in driving on the wrong side of the highway, in failing to maintain a proper lookout, in failing to return to his right side of the road after he had created an emergency, and in failing to retain proper control of his vehicle. Defendants plead in the alternative, the contributory negligence of Ramsey.

The record contains 275 pages of testimony, much of which is conflicting. Certain facts, however, are not disputed. These are: that the weather and road conditions were as hereinabove stated; and that immediately before the collision McDaniel was driving at a speed of approximately 50 to 60 miles per hour and Ramsey at a speed of 25 miles per hour. There remains for the court to ascertain the true facts bearing upon the fault of either or both of the drivers. When the case was concluded and argued the district judge was of the opinion that Ramsey was driving on the wrong side'of the highway and not maintaining a proper lookout and was thereby guilty of negligence. He further found McDaniel was guilty of negligence in driving at an excessive rate of speed, and in not bringing his vehicle under closer control when he observed the Jeep some distance away on its left side or in the center of the road. The: court then proceeded to sustain plaintiffs’ alternative plea that McDaniel should be held liable under the last clear chance doctrine. On this point the court gives the following reasons for its decision:

“Counsel pleads alternatively that McDaniel had the last clear chance to avoid the accident and gives his reasons therefor that McDaniel testified that he saw the Ramsey jeep about a quarter of a mile away coming toward him, and that the jeep was in the middle of the road angling over to his side of the road; that he continued driving straight ahead believing that Ramsey would pull over to his side of the highway; that the jeep continued on the wrong side of the road and that when the vehicles were five or ten feet apart, he blew his horn. McDaniel did state he took his foot off of the accelerator when the jeep was seventy-five to a hundred feet away from him; that in the last few seconds he attempted to cut to his left but it was too late. We must remember that the pavement was wet and slick which required extreme caution and that McDaniel was driving at an excessive rate of speed under such conditions; that he saw the jeep in its position on the road by his own testimony more than a thousand feet away but he did nothing about this until he was a hundred feet from the approaching vehicle and this was too late.
“We must remember also that the Bruton car was following McDaniel and, to show the dangerous condition of the road, Bruton testified that he saw the imminence of collision, applied his brakes and skidded into the ditch.
* * * * * *
"Counsel for McDaniel contends McDaniel was guilty of no negligence and that therefore, this doctrine does not apply, quoting the landmark case of Rottman v. Beverly [183 La. 947], 165 So. 153.
“This Court has previously gone into the question of McDaniel’s knowledge of a dangerous situation which became apparent at the moment he discovered Ramsey was driving on the wrong side of the road, but, despite this knowledge, he continued to drive at an excessive speed until the last moment and only then did he take evasive action to try and avoid the accident.
“Therefore, it is the opinion of this Court that while Ramsey was negligent, McDaniel definitely had the last clear chance to avoid the collision. This Court distinguishes the present case from Lacy v. Lucky [19 La.App.743], 140 So. 857, and Goodson v. Shuster’s Wholesale Produce Co., Inc., 10 La.App. [486], 489 [120 So. 689], in that McDaniel knew and could see that Ramsey was angling toward the left and continued to do so up to an instant before the collision.
'“McDaniel was not confronted with the sudden, unexpected emergency but a potentially continued emergency which should have put him on guard that Ramsey’s conduct in driving was latently dangerous.”

We find ourselves in complete agreement with the rulings of the judge wherein he held Ramsey and McDaniel negligent. The evidence has convinced us Ramsey was wrongfully on his left side of the highway and could not have been keeping a proper lookout. We are not unmindful of the testimony of Ramsey, Smedley, King and Tatum indicating the contrary might be true, but this evidence, in our opinion, is greatly outweighed by the testimony of McDaniel, Brewton, Elliott and State Trooper H. Lee Arledge. We think credence should especially be given to Arledge’s testimony which was supported and refreshed by his official record made within a short time after the accident and before the vehicles had been moved. Nor do we entertain any doubt McDaniel was driving at an excessive rate of speed under the existing conditions and in violation of the Motor Vehicle Act, and particularly section 227 thereof, LSA-R.S. 32:227, which forbids the operation of a motor vehicle on state highways at other than a reasonable and proper speed under the circumstances, or at a speed endangering the persons or property of others.

After most thoughtful consideration we think the trial judge erred in giving effect to the last clear chance doctrine. Manifestly, in order to determine if McDaniel had acted with reasonable promptness and thereby could have avoided the accident, his opportunities of escape and his endeavor to that end should be subject to close scrutiny. Briefly put, the outcome of the issue depends almost entirely upon his conduct. We have, therefore, carefully weighed his testimony and its implications.

McDaniel said he was first conscious of the approaching Jeep when it was around a quarter of a mile away traveling in the middle of the road while he was driving in his proper traffic lane; and that the closer the Jeep got to him the more it gradually angled to its left side. He explained the accident took place in the following manner:

“Well, the closer the Jeep got to me the further on my side of the road he got, so I took my foot off the gas thinking he would pull back over and when we were right on each other— last minute resort I cut to the left. And I could see the man — he was looking off to his left hand side.”

He further testified that just before the collision occurred he sounded his horn and Ramsey cut back at about the same time. He said the Jeep was more on the west side of the road when the two vehicles came together. On cross-examination McDaniel testified the Jeep was completely on the west side of the highway when the two cars were but 75 or 100 feet apart, and it was then that he removed his foot ■from the gas; that when the vehicles were but 5 or 10--feet apart he blew his horn ■and pulled hard to the left. Asked why he cut to the left -instead of the right, he answered:

“A. Well, what little time I had to think, I believe if I had cut to the left the man would have run right through the door where I was sitting; the left side of my car.
“Q. You mean you had cut to the right? A. Cut to the right, yes.”

The witness somewhat qualified the estimated distance between the two meeting vehicles given in his testimony by saying he didn’t “know exactly how far it was from me”, and “I couldn’t swear how far it was from me.” Perhaps the testimony of this witness, as well as that of the others herein, should be appraised with some consideration given to the fact that they were testifying some two years and nine months after the accident. However, we cannot accept as accurate the answer of McDaniel as to the cars being only 75 to 100 feet apart when he removed his foot from the gas and waited for the Jeep to return to the east side of the road. ' Nor can we believe that McDaniel could have initiated any movement whatsoever when the two vehicles were only from 5 to 10 feet apart. We say this because the automobiles were headed directly toward each other and their speeds were 50 to 60 miles per hour for the Ford, and 25 miles per hour for the Jeep, or a combined speed of from 75 to 80 miles per hour. And so, assuming the combined speeds to have been 75 miles per hour prior to the time McDaniel removed his foot from the accelerator, we know the intervening distance was being lessened 116 feet every passing second. Thus, during a single reaction time of three-fourths of a second, the intervening distance was shortened 87 feet. Reference is made to the tables which accompany the article of Hollinsworth B. Barret, entitled “Mechanics of Control and Lookout In Automobile Law”, Tulane Law Review, Vol. XIV, pages 492, 493, 503. In 'our opinion 100 feet was an insufficient distance within which McDaniel could decide to remove his • foot' -from the ■ accelerator, momentarily wait to see if the Jeep would move over, decide to blow his horn and turn to the left, and finally execute this maneuver. We do believe McDaniel made the movements about which he testified, but we are also certain the two automobiles were much farther apart than stated when he began his steps to avoid the emergency which he faced.

We deem it pertinent to inquire how much time elapsed between the moment McDaniel decided to remove his foot from the accelerator and the instant of the collision. We think this can safely be answered by saying more than seconds passed. This is true because during that period' of time McDaniel decided upon and executed at least two separate movements in the control of his car — that is to say, he removed his foot, waited, and then sounded his horn and turned left. Omitting the time which elapsed during the waiting interval, two reaction periods were utilized by McDaniel, or time equivalent to l^/z seconds, during which the Jeep traveled 54 feet and the Ford 132 feet or a total of 184 feet. Thus it is proper to conclude that at the instant McDaniel removed his foot from the accelerator of the Ford the Jeep was more than 184 feet away. Even then, we think, it was still possible for Ramsey to have extricated himself from the danger by turning the Jeep back into its proper traffic lane, and McDaniel was waiting and expecting Ramsey to do just this.

The views which we entertain in the instant case are expressed in the dissenting opinion of Judge Cavanaugh in Davis v. Lewis & Lewis, La.App., 1954, 72 So.2d 612, at page 618, wherein he quotes the trial judge:

, ‘The difficulty with this rule is that, although a traveler on the, right may know that, if the on-coming vehicle maintains its, course, there will inevitably be a collision, he can not know that the driver of such car will not turn in time to avoid a collision, in which event if he himself should turn to the left in violation of the ■rules of the road he would probably precipitate the catastrophe which he is seeking to avoid, and liability for which it would be hard for him to escape. It might seem better for him either to hold his course if a further turn to his right is impracticable or to stop and rely on the other driver changing his course in time, and so it is held in some jurisdictions.’ Blasffield, Vol. 2, Secs. 919, 920 and 921, pages 92-105; Manuel v. Vidrine, 9 La.App. 446, 119 So. 542; Cutrer v. Jones, La.App., 9 So.2d 859; Kennedy v. Opdenweyer, 11 La.App. 532, 121 So. 636 [123 So. 906]; Ford, Bacon & Davis, Inc., v. Shaw, 8 La.App. 751; Smith v. Baker, La.App., 59 So.2d 714.”

The dissenting opinion therein and the ruling of the trial judge quoted above were sustained by the Supreme Court when that court affirmed the judgment of the district court. See: Davis v. Lewis & Lewis, 1955, 226 La. 1064, 78 So.2d 174.

In our opinion McDaniel could only have speculated whether or not Ramsey would continue to maintain his position in the center of the highway and wholly disregard the approaching Ford automobile. It is logical, except where the circumstances are most unusual, to expect a vehicle not entirely on its side of the road to resume its proper position as long as it has an opportunity to do so. Under the circumstances as here presented, we are of the opinion that McDaniel was justified in believing that Ramsey would extricate himself from the -position of danger. There were no other vehicles on the highway to prevent Ramsey from doing so. Furthermore, the accident sustained by Brewton and Elliott when upon the sudden application of the brakes on Brewton’s Pontiac, the car skidded into a ditch on the west side of the highway shows plainly road conditions prohibited any sudden braking of the Ford.

We are in disagreement, therefore, with the holding of the judge a quo, but only insofar as it maintained the last clear chance doctrine and rendered, judgment in favor of the plaintiffs herein. It follows from our findings that the negligence of Ramsey and McDaniel was concurrent and suffices to bar recovery by either.

Considerable testimony was adduced on behalf of Southern Bell Telephone and Telegraph Company, Inc., to show that McDaniel at the time of the accident was not acting within the course of and scope of his employment. In view of the conclusion above reached, we pretermit any decision upon the issue thus presented.

The judgment from which appealed is reversed and set aside and the demands of plaintiffs are rejected. Costs shall be paid one-half by plaintiffs and one-half by McDaniel. Southern Bell Telephone and Telegraph Company, Inc. is not taxed with costs.


source: Caselaw Access Project

author: GLADNEY, Judge.

license: Public Domain

text:
    Ralph L. McDANIEL et al., Plaintiffs-Appellants, v. John F. RAMSEY et al., Defendants-Appellees.
    No. 8340.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.
    Dhu & Lea S. Thompson, Monroe, for appellants.
    Madison, Madison, Files & Shell, Bas-trop, for appellees.
   GLADNEY, Judge.

This, a companion suit to the case of Ramsey v. McDaniel, La.App., 84 So.2d 276, is for the recovery by McDaniel for 'personal injuries and by his co-plaintiff and liability insurer to be reimbursed property damage incurred in a vehicular collision March 3, 1950. The facts and issues relating to said accident are stated in the opinion rendered by this court in Ramsey v. McDaniel, wherein each of the drivers of the two vehicles involved, John F. Ramsey and R. L. McDaniel, were held guilty of acts of negligence constituting proximate causes of the accident.

It is therefore ordered that the judgment from which appealed be and the same is hereby affirmed. The costs incurred herein should be divided in the proportion of one-half to plaintiffs and one-half to defendants.


author: AYRES, Judge.

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. Paul J. ADAMS, Defendant-Appellant.
    No. 8448.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Adams & Hobbs, Monroe, for appellant.
    Hayes, Harkey & Smith, Monroe, Adams & Reese, New Orleans, James T. Adams, Shreveport, for appellee.
   AYRES, Judge.

This is an action by the Louisiana State Board of Medical Examiners under the authority of LSA-R.S. 37:1261 et seq., seeking to enjoin, restrain and prohibit defendant from the practice of medicine in the State of Louisiana until he shall have first obtained a certificate or permit authorizing him to do so, as required by law, and further for the assessment of a penalty of $100 and an attorney’s fee of $50. From a judgment in favor of plaintiff as prayed for, defendant prosecutes a suspen-sive appeal to this court.

Answering plaintiff’s demands, defendant admitted that, without having first obtained a license or permit to practice medicine under the provisions of the aforesaid statute, he is holding himself out to the public as being engaged in the business of diagnosing, treating, curing or relieving bodily diseases, conditions, infirmities, ailments and injuries in human beings other than himself and is examining such persons for such purposes, and further contends that (1) all acts incident to his business have been in the treatment of diseases, infirmities, ailments or injuries to human beings without the use of drugs or medicine and which treatment is and has been solely and exclusively by manipulations applied to nerve centers, bones, muscles or ligaments; (2) that defendant’s acts constitute the practice of osteopathy as defined in LSA-R.S. 37:1111, and (3) that the Louisiana State Board of Medical Examiners is without interest or right of action against him since it has no legal authority under said statute.

The issues thus tendered were tried upon a stipulation or agreed statement of facts, wherein it was stipulated that if witnesses were produced, evidence adduced and testimony taken, these material facts would be established:

“1.
“That the defendant, Paul J. Adams, is holding himself out to the public as being engaged in the practice of Chiropractic in the City of Monroe, Ouachita Parish, Louisiana, and maintains an office and place of business in said City, Parish and State for that purpose.
“2.
“That the said defendant is engaged in the practice of Chiropractic in said City, Parish and State, and for such purpose receives, diagnoses and treats patients for bodily diseases, conditions, infirmities, ailments and/or injuries by the use of physical force applied to such patients by manual manipulation of the spine, of the vertebra of the spinal column and of the nerve centers of the body, which manipulation is for the purpose of removing and relieving bodily diseases, conditions, infirmities, ailments, injuries, pain or suffering; that the defendant does not use drugs or X-rays or any other treatment other than set forth.
“3.
“That said practice of the defendant consists of examining said patients, taking their case histories and thereafter treating and adjusting such patients by the use of manual force applied to the body of said patients in the manner described in Paragraph Two (2) above.
“4.
“That the services rendered by the defendant herein were and are paid for by said patients for a price and for a fee agreed upon between him and said patients.
"5.
“That the defendant herein is a graduate of a college which teaches the chiropractic method of treatment.
“6.
“That the said defendant, Paul J. Adams, does not now and has never either received or been issued a Certificate or Permit provided for in and under the provisions of Title 37-1261-1290 of the Louisiana Revised Statutes of 1950, as amended.
“7.
“That Rett McMahon, M. D., is President of the Louisiana State Board of Medical Examiners and has been and is authorized by said Board to institute and prosecute this proceeding in the name of said Board against the-said defendant, Paul J. Adams.
“8.
“That plaintiff herein has retained Attorneys to represent it in this cause- and it is agreed that the value of the services of said Attorneys is at least the sum of Fifty Dollars ($50.00).”

It is well settled in the jurisprudence of this State that the practices admittedly engaged in by the defendant, including the practice of chiropractic, constitute the practice of medicine. Allopathic State Board of Medical Examiners v. Fowler, 50 La.Ann. 1358, 24 So. 809; Louisiana State Board of Medical Examiners v. Charpentier, 140 La. 405, 73 So. 248; Louisiana State Board of Medical Exam iners v. Vincent, 140 La. 411, 73 So. 250; Louisiana State Board of Medical Examiners v. Cronk, 157 La. 321, 102 So. 415; Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, 111 So. 58, 54 A. L.R. 594; Fife v. Louisiana State Board of Medical Examiners, 274 U.S. 720, 47 S.Ct. 590, 71 L.Ed. 1324; Louisiana State Board of Medical Examiners v. Beatty, 220 La. 1, 55 So.2d 761; Louisiana State Board of Medical Examiners v. McHenery, 222 La. 984, 64 So.2d 242; State Board of Medical Examiners v. McHenery, La.App., 69 So.2d 592; Louisiana State Board of Medical Examiners v. Tackett, La.App., 71 So.2d 137; Louisiana State Board of Medical Examiners v. Booth, La.App., 76 So.2d 15; Louisiana State Board of Medical Examiners v. Fisher, La.App., 76 So.2d 56; Louisiana State Board of Medical Examiners v. Weller, La.App., 77 So.2d 166; Louisiana State Board of Medical Examiners v. Barber, La.App., 78 So.2d 60.

However, in claiming that his practices relate solely to the practice of osteopathy, defendant contends that he is exempt from the provisions of the aforesaid Medical Practice Act and that the Louisiana State Board of Medical Examiners is without interest or right to proceed against him. With this contention we are unable to agree. The practice of medicine, defined in LSA-R.S. 37:1261, as follows:

“As used in this Part, ‘the practice of medicine, surgery, or midwifery’ means the holding out of one’s self to the public as being engaged in the business of diagnosing, treating, curing, or relieving any bodily or mental disease, condition, infirmity, deformity, defect, ailment, or injury in any human being other than himself whether by the use of any drug, instrument or force, whether physical or psychic, or of what other nature, or any other agency or means; or the examining, either gratuitously or for compensation, of any person or material from any person for such purpose whether such drug, instrument, force, or other agency or means is applied or used by the patient or by another person; or the attending of a woman in childbirth without the aid of a licensed physician, surgeon or midwife; or the using of any other title other than optician, to indicate that he is engaged in the business of refracting or fitting glasses to the human eye”,

includes the practice of osteopathy as defined in LSA-R.S. 37:1111:

“ ‘Osteopathy’ means the treatment of disease, infirmity, deformity, defect, ailment, or injury of a human being, by manipulations applied to the nerve centers, bones, muscles or ligaments, without the use of drugs or medicine, except antiseptics and anodynes locally applied.”

It was contended in Louisiana State Board of Medical Examiners v. Beatty, supra, that the legislature by enacting Act 91 of 1932, the source of the osteopathy statute, modified the general definition of the practice of medicine so as to exclude therefrom chiropractors and others who treat by the application of physical pressure. In substance, that is the contention made here. That contention, however, was overruled by the Supreme Court by Mr. Justice McCaleb of the Supreme Court, who stated [220 La. 1, 55 So.2d 762]:

“We are unable to perceive merit in this proposition. Act 56 of 1914, as amended [LSA-R.S. 37:1261 et seq.], is a broad and all inclusive statute covering the entire field of the healing art in this State and the practice of medicine as defined therein embraces every known type or method of treatment for the relief or cure of ailments or disease. The practice of osteopathy, dentistry and optometry, like that of chiropractic, falls within the scope of the Act and osteopaths, dentists and optometrists would be amenable to its provisions but for the exemption which the Legislature has seen fit to grant them when they are legally licensed to practice in their respective fields. Hence, by specially defining the practice of osteopathy in Act 91 of 1932, the Legislature neither intended to, nor did it, contract the scope of the definition of the practice of medicine so as to exclude therefrom the type of healing practiced by appellants.” (Emphasis supplied.)

As was held in the Beatty case, the practice of osteopathy and chiropractic, as well as dentistry and optometry, falls within the scope of the Medical Practice Act and those practicing as such are amenable to its provisions, except when they are legally licensed to practice in their respective fields. The statute, LSA-R.S. 37:1290, provides :

“None of the provisions of this Part shall apply to:
******
“(4) Licensed dentists, pharmacists, osteopaths, practicing according to law; * * (Emphasis supplied.)

In the instant case it is not shown that defendant is licensed as an osteopath and thereby brought within the exemption provided by the statute. The burden was upon the defendant to show that he. was a licensed osteopath and as such came within the exemption. In this he has failed. Louisiana State Board of Medical Examiners v. McHenery, supra. It is only when practicing osteopathy and licensed as such one is exempt from the provisions of the Medical Practice Act.

It is our conclusion, as was that of the Supreme Court in the Beatty case, that the practice of osteopathy by an unlicensed osteopath is prohibited by the Medical Practice Act, and that the Louisiana State Board of Medical Examiners has jurisdiction over and a right and interest in such practice and in a suit to restrain such illegal acts.

Finding no error in the judgment appealed, for the reasons herein assigned, it is affirmed at appellant’s cost.

Affirmed.


text:
    O. L. TRAYLOR, Sr., et al., Plaintiff-Appellant, v. Artis COLVIN, Defendant-Appellee.
    No. 8411.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.

      Barham & Elder, Waltman & Napper, Ruston, for appellant.
    McBride & Goff, Ruston, for appellee.
   AYRES, Judge.

The object of this action is the abatement of an alleged nuisance. The subject of the complaint is a commercial broiler brooder house owned and allegedly operated by defendant in a residential area of the Town of Ruston, in which area plaintiffs, eight in number, own their homes and reside. From a judgment in defendant’s favor, plaintiffs appealed.

In their brief filed in this court plaintiffs state their position:

“We call to the Court’s attention that it is plaintiffs’ contention that they had no legal right to enjoin the defendant from constructing a chicken brooder house. The only right that the plaintiffs have is to enjoin the defendant from operating the brooder house in such a manner that it will give off obnoxious odors, smell and stench to the extent that it disturbs the adjoining property owners in the enjoyment of their homes. This is the only right that plaintiffs have. As a matter of fact, it is our opinion that plaintiffs can not enjoin the defendant from keeping chickens in his brooder house but can enjoin him from permitting obnoxious odors and smells escaping from the brooder house on to the premises of plaintiffs, thereby disturbing them in the enjoyment of their homes, and that is what plaintiffs are asking for in this case. We concede that it may be possible for defendant to keep a certain number of chickens in his brooder house without causing a stench or smell that would disturb the adjoining neighborhood.”

The operation of a brooder house, as well as the operation of any other lawful business, lawfully located, is not per se a nuisance, but by the manner of its operation it may become a nuisance. Its location and proximity to other property are factors to be considered. A brief résu-mé of the facts will be undertaken for an understanding of the issues involved.

After obtaining a permit from the Town of Ruston, defendant erected in the fall of 1951 the brooder house forming the basis for this action. This building, having a dimension of 20 x 70 feet, is constructed of frame walls, with an aluminum roof and with seven doors and seven windows on each side; the doors are aluminum and the windows are covered with isinglass. Its equipment consisted, among other appliances, of three gas-burning brooders; it had a normal capacity of 1,500 chicks. The house was located on defendant’s premises at 706 Tech Drive. Plaintiffs reside in that vicinity, the nearest some 80 to 100 feet from the brooder house and all others within a few hundred feet. During the fall of 1951, the ensuing winter and spring of 1952, defendant operated his brooder house by rearing and marketing therefrom three batches of approximately 1,500 to 1,750 chicks each. Preceding receipt of the chicks, the floor of the brooder house was covered to a depth of several inches with shavings obtained from lumber planing mills, and during the eight or nine weeks required for- the chickens to become ■of marketable age and size, the shavings were replenished or turned as needed to maintain sanitary conditions. When the -chicks were sold, the house was cleansed, disinfected and opened for ventilation for about a week preceding the arrival of a new supply of chickens, whereupon the operation described above was then repeated.

After disposing of the third batch of chickens for commercial purposes, defendant concluded, due to complaints received at that time from some of his neighbors, to cease his operations of a brooder house for commercial purposes. He thereupon sold his brooder equipment, which was removed from the brooder house. He then discontinued his operations on. a commercial ■scale and has not since engaged in that business. Subsequently, however, plaintiffs’ suit was filed March 24, 1953, or about a year after defendant had discontinued his aforesaid operations.

In his answer filed April- 13, 1953, defendant averred that he had no present intention whatsoever of again engaging in the business of raising chickens commercially in that location or elsewhere. As a witness on the trial of the case two years later on April 28, 1955, he again reiterated his intention not to ever again engage at that location in the operation of a broiler brooder house for commercial purposes.

Although the house has not been used since the spring of 1952 for rearing chickens for commercial purposes, on occasions, particularly in connection with defendant’s minor son’s 4-H Club project, as many as 200 baby chicks have been placed in the brooder house. Within approximately nine weeks, when these chickens were ready to show, their number had been gradually culled down to a dozen. On one other occasion it appears, too, that for only a few days the building was used by one of the dealers in Ruston to store a few hundred chicks.

The universally and generally accepted rule of law is that, in the absence of restrictions such as may be imposed by zoning regulations or other appropriate authority, an owner of property has a right to conduct thereon any lawful business, not per se a nuisance, so long as that business is conducted in such manner that it will not unreasonably inconvenience a neighbor in the reasonable enjoyment of his property. It is likewise a universally accepted rule of law that every business, however lawful, must be conducted with due regard to the rights of others and that no one has a right to erect and maintain a nuisance to the injury of his neighbors, even in the operation of a lawful trade, or to conduct a business on his property in such a way it will be offensive or injurious to those residing in the vicinity. Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816; Borgnemouth Realty Co. v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488; Frederick v. Brown Funeral Homes, Inc., 222 La. 57, 62 So.2d 100; Kellogg v. Mertens, La.App., 30 So.2d 777; 39 Am.Jur. 324, “Nuisances”, Sec. 43.

The operation of a broiler brooder house is a lawful enterprise. It is not a nuisance per se, which has been held to be an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances, in fact, are those which become nuisances by reason of the facts, circumstances and surroundings. In this connection, 39 Am.Jur. 291, “Nuisances”, Sec. 11, states:

.“The difference between a nuisance per se and a nuisance in fact lies in the proof, not in the remedy. In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality, and the right to relief is established by averment and proof of the mere a-ct. But whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is necessary. The act or thing complained of must be shown by evidence to be a nuisance under the law, and whether it is or is not a nuisance is generally a question of fact.”

See also Borgnemouth Realty Co. v. Gulf Soap Corporation, supra; Frederick v. Brown Funeral Homes, Inc., supra.

The word “nuisance” has been defined many times. 66 C.J.S. Nuisances, § 11, p. 727, gives this definition:

“Literally ‘nuisance’ means ‘annoyance,’ and, in its broadest sense, it is that which annoys or gives trouble or vexation, that which is offensive or noxious; anything that works hurt, inconvenience, or damage. The term signifies in law such a use of property or such a course of conduct as, irrespective of actual trespass against others or of malicious or actual criminal intent, transgresses the just restrictions on use or conduct which the proximity of other persons or property in civilized communities imposes on what would otherwise be rightful freedom.”

39 Am.Jur. 280, “Nuisances”, Sec. 2, states:

“In legal phraseology the term ‘nuisance’ is applied to that class of wrongs which arises from the unreasonable, unwarrantable, or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. It is so comprehensive that it has been applied to almost all wrongs which have interfered with the rights of the citizen in person, property, the enjoyment of his property, or his comfort.” See also Robertson v. Shipp, La.App., 50 So.2d 699, and the authorities here-inabove cited.

The testimony leaves little doubt, if any, that during the period of the aforesaid operation the offensive odors emanating from the brooder house did interfere with plaintiffs’ use and enjoyment of their residences and premises, especially when beyond the brooder house and in the path of the prevailing winds. A detailed statement of the annoyances suffered is unnecessary, but under the circumstances established by the record as existing at the time, it could only be reasonably concluded that the operation of the brooder house constituted a nuisance, especially in view of the manner of its operation and its proximity to neighboring residences.

But such a conclusion is not determinative of the issues now before the court. It is established from the evidence that defendant has not engaged in the operation of the broiler brooder house on a commercial scale since the spring of 1952. The keeping of a flock of poultry for family use was not shown to constitute a nuisance in this instance, neither has the rearing of a dozen or so of prize specimens from as many as 200 chicks culled down to that number within two months, or the storing of a few hundred baby chicks for a few days on only one occasion. If these constitute nuisances in fact, the 'burden is upon plaintiffs to so establish by proper proof. This burden has not been borne here.

There remains as a basis for plaintiffs’ complaint the existence only of the broiler brooder house, divested of its equipment, and the possibility that at some future time defendant might again engage in the operation of said brooder house upon a commercial scale or in a manner to disturb them in the use and enjoyment of their property. As stated heretofore, his operation on such a scale was discontinued a year before the filing of this suit. Both in his answer and in his testimony on the trial two years later, defendant disclaimed any such intention. In brief, plaintiffs state:

“We see no reason why defendant objects to this Court enjoining him from doing something which he claims now that he is not doing or has no intention of doing. Under th,e defendant’s contention, the injunction asked for by the plaintiffs would not hurt defendant in any manner. He readily admits that he does not want to cause his neighbors the discomfort and in-conveninece of the smell of a chicken brooder house. Therefore, why does he object to the injunction 'being; issued by this Court?”

The answer to this contention is obvious. If an injunction issued against defendant, he would be assessed with the costs of a time-consuming' trial and of a very voluminous record. If he were subjected to actions by various and sundry parties seeking to enjoin him from every conceivable act which he had no intention of doing, it would be most unwarranted and unjust to hold that he had no defense and had to stand idly by and be condemned in the suit and cast for costs. Such is not the law as we shall presently show.

The jurisprudence of this State is that an injunction will not issue against the operation of a lawful business merely on the ground that it might be conducted in such manner as to become a nuisance. For instance, the Supreme Court in Frederick v. Brown Funeral Homes, Inc., supra, 62 So.2d at pages 110-111 stated:

“This court has on numerous occasions refused to enjoin the establishment or erection of a lawful business simply on the ground that it might be conducted so as to become a nuisance. Bell v. Riggs & Bros., 38 La.Ann. 555; Lewis v. Sandell, 118 La. 852, 43 So. 526; Canone v. Pailet, 160 La. 159, 106 So. 730; Graver v. Lepine, 161 La. 97, 108 So. 138.
“In Bell v. Riggs & Bros., cited supra, 38 La.Ann. 555, 556, this court said:
“ ‘The rule is founded in reason and firmly established by authority that injunction will not lie against a prospective nuisance except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance viola-tive of legal right. Wood, Law of Nuisances, para. 103, 1047
“Likewise in Lewis v. Sandell, cited supra, 118 La. 852, 859, 43 So. 526, 529, the court held ‘that a lawful business not yet in existence and not a nuisance per se could not be enjoined on the face of the papers until evidence had been adduced to establish same’.
“Again in Canone v. Pailet, cited supra, 160 La. 159, 162, 106 So. 730, and Graver v. Lepine, cited supra, 161 La. 97, 100, 108 So. 138, 139, this court held: ‘A lawful business is never a nuisance per se, and no one has the right to prevent the establishment of such business for fear that it might be ■conducted so as to become a nuisance.’ ”

It is firmly established by the record, as we understand and appreciate it, that defendant is not now and has not been operating the broiler brooder house since 1952 in such manner as to constitute a nuisance or in a manner to interfere with or annoy plaintiffs in the use and enjoyment of their residences and properties. It is likewise clear that he has no intentions of renewing such operations.

While we have in some detail stated the basis and given our reasons for our conclusions, the judgment appealed could equally as well and very appropriately be sustained on the fact that the record does not disclose any manifest error in the judgment appealed.

The conclusions reached on the merits obviate the necessity of ruling on the pleas and exceptions filed on behalf of defendant.

Accordingly, for the reasons assigned, the judgment appealed is affirmed at appellants’ costs.

Affirmed.


author: GLADNEY, Judge. AYRES, Judge.

text:
    William O. RICHEY, Plaintiff-Appellee, v. Robert Lee HILL, Defendant-Appellant.
    No. 8243.
    Court of Appeal of Louisiana. Second Circuit.
    May 18, 1955.
    On Rehearing Jan. 9, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.
    See, also, 22S La. 994, 74 So.2d 190.
    Peterman & Burden, Gold & Hall, Alexandria, for appellant.
    Polk & Culpepper, Alexandria, for ap-pellee.
   GLADNEY, Judge.

William O. Richey instituted this peti-tory action to be declared the owner of and restored to possession of 86.65 acres of land. It was the third action brought in the District Court in Rapides Parish involving this property. The plaintiff herein, on September 16, 1946, executed a timbei deed to William Earl Kolb, after which a survey was made of the land therein involved which delineated between the properties of Richey and Hill a line> hereinafter referred to as the “red line.” The survey indicated plaintiff owned property which he was not aware of at the time he sold his timber to Kolb and as a consequence of this discovery Richey instituted a suit against Kolb for additional consideration for the timber sold. This suit was subsequently compromised and settled. During the year 1948 all of the merchantable timber ten inches and up sold by Richey to Kolb was removed. Within a year thereafter Robert L. Hill, the identical defendant in this petitory action, instituted a suit against W. O. Richey and the latter’s vendees of the timber above referred to. In his action Hill prayed to be restored to possession of the land involved and for damages arising from the cutting of the timber. This suit was eventually appealed to the Supreme Court, Hill v. Richey, 221 La. 402, 59 So.2d 434, 436, which rendered judgment in Hill’s favor but remanded the case to the district court for the purpose of fixing the amount of damages. The instant suit was filed by William O. Richey against Roben. Lee Hill on December 9, 1952, and has been appealed to this court by Hill who is aggrieved by a judgment recognizing Richey as the owner of the property in dispute.

For a better understanding of the issues involved herein we quote the following excerpt from the opinion of the Supreme Court, since the identical land in dispute herein was involved in the suit of Hill v. Richey:

“Plaintiff Hill is the owner of a tract of land comprising approximately 617 acres. Adjacent to and east of his land, defendant W. O. Richey owns a tract containing approximately 520 acres. Both the plaintiff and this defendant claim title to the disputed area from a common author. Plaintiff Hill acquired his interest by inheritance from his wife, Mrs. Hattie Clark, the vendee in 1898 of Mrs. Clemmie Brian. Defendant inherited his tract from his father and mother, whose immediate author in title had acquired the land from Mrs. Brian in 1910.
“This Jitigation arose under the following circumstances: Defendant Richey sold the timber on his tract of land to W. E. Kolb, who in turn sold it to the Kellogg Lumber Company. Before the cutting of the timber for which plaintiff seeks damages, the purchaser of the timber caused a survey to be made of the boundary between the Hill and Richey tracts to establish the extent of the property included in the timber purchase. Defendant Richey had the line established by this survey marked on the ground in red, and this line is the western boundary of defendant’s plantation according to the calls in his deed. This line will be hereinafter referred to as ‘the red line’. On a large map or plat introduced in evidence by the plaintiff this line which we have just described is shown in red. Plaintiff contends that the boundary line between these two plantations is located somewhat to the east of the red line, beginning at a common point on the north and proceeding in a southerly direction to the southern boundary of Section 25, Township 5 North, Range 4 West. This line has been marked in yellow on the map offered in evidence and will be hereinafter designated as ‘the yellow line’. The tract of land of which plaintiff seeks to be maintained in possession is the area between these two lines and is in somewhat the shape of an inverted ‘V’. On the north these two lines have an apex or common point. Both run to the southern line of Section 25, and at that, point the distance between them is about 24.56 chains. In the early part of 1948, the actual cutting of the timber was begun on the land situated ‘between the two lines, and within a year, in June, 1948,. the present suit was instituted.
“The evidence is convincing and establishes beyond question that for many years the line now designated as the ‘yellow line’ has been recognized by the owners as the boundary line between their respective plantations, and the area between these two lines was considered a part of plaintiff’s lands or plantation. At the time of the timber sale made by defendant Richey, he pointed out to the purchaser this yellow line as the dividing line between his plantation and that of plaintiff, or called to his attention that the land west of the yellow line did not belong to him but belonged,to another. After the survey was made of the red line, the defendant Richey instituted suit against the purchaser of the timber, alleging that at the time of the sale he did not know that he owned the area between the two lines, that the timber thereon was worth $5000.00, and that he was entitled to recover this amount from the purchaser. That suit was compromised by the purchaser’s paying an additional consideration for the timber sold.
“The yellow line is marked on the ground by blazes on trees, by fences, or by remains of old fences such as old pieces of wire in the trees, and old surveyor’s marks on the trees are evidence that the line had been surveyed at some time in the past. Along the entire length of this line there is a fence or evidence of a fence except along portions at the north and south ends. Plaintiff, now 76 years of age, testified that there had been a fence on this line since he was a 10-year-old boy; that the fence now standing was built by him in the early 1930’s, and that it had been repaired by him or his tenants from time to time since then. Defendant Richey himself admitted that there was a fence along portions of this line when his father bought the property in 1918, and that he himself constructed a fence along a portion of this line. Both plaintiff and defendant had cross fences running east and west which tied onto the existing fence along this line. Along the north and south portions of the line where there are no fences the land is low and swampy and under standing water most of the time and during part of the year is covered by water from one and one-half to three and one-half feet deep. Along these portions of the line there are hacks and blazes on the trees, evidently made by a surveyor, and ‘No Trespassing’ signs bearing Hill’s name. Defendant Rich-ey had likewise posted the property on the east side of the line. The evidence shows that for many years prior to this litigation this yellow line was generally recognized and accepted not only by plaintiff and defendant but by the entire community as being the boundary line between these two plantations.
“Plaintiff Hill or his wife, who had resided on this plantation since 1913, had actually farmed and cultivated all portions of the land between the two disputed lines which were susceptible of cultivation. They themselves or their tenants had grown and cultivated crops of corn, cotton, and hay, and these operations had been continued to the yellow line. Hill had grazed cattle, sheep, goats, and hogs over the entire tract, including the swampy portions, and on occasions had rented the property to others for grazing their cattle. From the swampy areas his tenants from time to time had cut ties. Furthermore, he had some livestock grazing on the tract at the time of the trial. He had also sold the timber on three different occasions from the swampy areas, and his purchasers were engaged in the cutting and removal of such timber on each occasion for several months. On one of these occasions a large crew, whose operations were extensive, actually were engaged in the cutting and removing of timber for approximately eight months.
“There is no evidence that prior to this controversy the red line had ever been surveyed on the ground or that defendant Richey ever at any time had or took corporeal or actual possession of any part of the land between these two lines.”

The decision of the Supreme Court in Hill v. Richey, since it involved a posses-sory action is decisive only as to the extent and quality of possession of Hill during the year preceding the filing of this suit. We must assume, therefore, that the findings of fact relating to the possession of Hill beyond such period should not be considered conclusive.

Upon the trial of this petitory action Richey and Hill have not only placed in evidence their deraignments of title but have augmented the record of Hill v. Richey, which has become a part of the instant record, by additional testimony and evidence relating to the extent and duration of Hill’s possession. The muniments of title found in Richey’s claim of ownership describe the land in dispute herein but the records supporting Hill’s title do not. Hill acquired the property from the estate of his wife, Mrs. Hattie Clark Hill, in whose succession judgment was rendered on March 10, 1925, recognizing Hill as the universal legatee and sending him into possession of the property therein described and “any and all other, whether herein included or not, which may have belonged to the succession of his deceased wife.” The record establishes that Mrs. Hattie Clark Hill died on November 25, 1924.

Inasmuch as the property in dispute is not described in any of the documents or records through which Hill claims ownership, he is relegated to title by possession, and in order to place this claim before the court defendant filed pleas of prescription of ten and thirty years. An examination of the deeds and documents discloses no basis for the plea of prescription of ten years, nor does counsel for defendant urge this plea. This leaves for our consideration the following issues: first, the extent and duration of Hill’s possession and that of his authors in title, and second, whether or not the possession of Mrs. Hill may be tacked or joined to the possession of Hill in order to complete thirty years of adverse possession and establish the claim of ownership based on the thirty year plea of prescription.

When this case was tried Richey called fifteen witnesses to controvert Hill’s plea of prescription of thirty years based upon Articles 3499 through 3505 of the LSA-Civil Code. The purpose of adducing this evidence was to show that the possession of Hill and his author in title was not continuous. The decision of the Supreme Court in Hill v. Richey adjudicated in fact the nature, quality and extent of Hill’s possession for the year preceding the institution of said suit. The record in this case has not persuaded us that the extent, nature and quality of the possession during the thirty years preceding the disturbance of Hill’s possession was materially different from that determined by the Supreme Court. We, therefore, are of the opinion that the plea of prescription of thirty years relied upon here must be sustained, provided the possession of Mrs. H-ill may be tacked or joined to that of the defendant herein.

In assigning reasons for the judgment from which appealed, our brother of the district court held that since the lands described in the judgment in the succession proceedings of Mrs. Hill did not include the tract here in dispute there was no privity of estate between Hill and his wife. The fact that the property in dispute between Richey and Hill was not expressly described in the transfer of title relied upon by Hill is not conclusive herein. We recognize the validity of the ruling that for the purpose of claiming land under the prescription of thirty years in a petitory action several successive possessions cannot be joined to show a continuous adverse possession unless there is privity of estate or contract between the occupants, and that in the absence of privity the several acts of adverse possession are construed as nothing more than a series of trespasses, and on the termination of each of those acts the possession returns by operation of law to the rightful owner of the immovable. See Coats v. Lee, La.App.1954, 70 So.2d 229; Beam v. Dudding, La.App.1949, 43 So.2d 73; Buckley v. Catlett, 1943, 203 La. 54, 13 So.2d 384; Sibley v. Pierson, 1910, 125 La. 478, 51 So. 502; Harang v. Golden Ranch Land & Drainage Co., 1918, 143 La. 982, 79 So. 768; Emmer v. Rector, 1932, 175 La. 82, 143 So. 11.

In American Jurisprudence, Volume I, page 880, privity is thus explained:

“Privity denotes merely a succession of relationship to the same thing, whether created by deed or by other act, or by operation of law. If one, by agreement, surrenders his possession to another, and the acts of the parties are such that the two possessions actually connect, the latter commencing at or before the time the former ends, leaving no interval for the constructive possession of the true owner to intervene, such two possessions are blended into one, and the limitation period upon the right of such owner to reclaim the land is thereby continued. Indeed, the purpose of a continuous possession is the continuous ouster of the owner. All that is necessary to privity between successive occupants of property is that one receive his possession from the other by some act of such other or by operation of law, the one taking under the other as by descent, will, grant, or other transfer of the possession. Thus, it is apparent that privity exists between the ancestor and his heirs, and the grantees of such heirs.”

The above quoted statement must be read in connection with statutory limitations as imposed by the LSA-Civil Code. The Code provides, Article 3498, that a possessor is allowed to make the sum of possession necessary to prescription by adding to his own possession that of his author, in whatever manner he may have succeeded by a universal or particular, a lucrative or an onerous title. The word “author” is defined in Article 3494 to be the person from whom another derives his right, whether by universal title as by succession, or by particular title, as by sale, by donation, or any other title, onerous or gratuitous, and declares further that in every species of prescription the possession of the heir may be joined to that of the ancestor, and the possession of the buyer to that of the seller. Article 3495 says that to enjoy this advantage the different possessors must have succeeded each other without interval or interruption. To hold that privity of estate does not occur except through description of the subject property in the muniments of title connecting the possessors, ignores the effect of Article 1609 of the LSA-Civil Code, which provides :

“When, at the decease of the testator, there are no heirs, to whom a proportion of his property is reserved by law, the universal legatee, by the death of the testator, is seized of right of the effects of the succession, without being bound to demand the delivery thereof.”

Since 1825 the maxim le mort saisit le vif has been a familiar rule in our jurisprudence, being understood to imply the succession descends to legal heirs or heirs of the blood from the moment of death. Irregular heirs have only the right to be put in possession of the succession by an order of court. Equally well established is the principle that where there is a universal legatee and no forced heirs, the universal legatee is then seized of right of the effects of the succession. Article 1609 of the LSA-Civil Code. See 15 Tulane Law Review, pages 577, 580, 581 and authorities reflected therein. Prior to Act 408 of 1938, amending Article 915 of the LSA-Civil Code, the status of the surviving spouse was that of an irregular heir, and as such not seized immediately of right to the effects of the succession.

It is argued that the record is silent as to the origin or the title of possession of Mrs. Hattie Clark Hill and that no evidence has been presented concerning the divestiture of title by William Clark. And further, it is said, the court has no right to indulge in the presumption that William Clark or Hattie Clark Hill did not leave forced heirs. Predicated on these premises it is contended the provisions of Article 1607 and not those of 1609 should govern in this case. Article 1607 reads:

“When, at the decease of the testator, there are heirs to whom a certain proportion of the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”

It follows, should we apply Article 1607, that there would have been an interval of time between the death of Mrs. Hill and the moment her husband, the universal legatee, succeeded to the effects of the estate. The judgment recognizing Hill as the universal legatee of his wife bequeathed to him all of the property possessed by her. This judgment has not been attacked by forced heirs since 1925. There is no evidence of their existence then or now. There follows certainly a strong presumption that there were no forced heirs or such an attack would have been made. We do not think it was incumbent upon Hill to produce evidence to show the absence of forced heirs of his wife or Clark. Such proof is negative and Hill is entitled to rely on the presumptions which flow from the judgment. We feel justified, therefore, in concluding there were no forced heirs to controvert the title and possession of the defendant predicated on his acquisition of the subject property as universal legatee. 'Certainly, if legal heirs were in existence and known to be such, plaintiff.should have produced' them.

Hill’s claim to seizen of the property of his wife by virtue of being her universal legatee and there being no forced heirs is affected by Article 1609 of the Code. In the Succession of Stevens, 1915, 137 La. 613, 69 So. 26, 27, the court said:

“ ‘Our Code leaves no room whatever for doubt or surmise as to the fact of the property of a deceased person being transmitted directly and immediately to the legal heir, or, in the absence of forced heirs, to the universal legatee, without any intermediate stage when it would be vested in the succession representative, or in the legal abstract called “succession.” The law on that point is so explicitly stated in the Code, and has been so frequently applied, that nothing more is needed here than to give the numbers of the articles of the Code bearing upon the point, and the pages of the Reports where a few of the very numerous decisions are to be found: Articles 940-947, 1609, 1611, and 1671; Womack v. Womack, 2 La.Ann. [339] 341; Frazier v. Hills, 5 La.Ann. [113] 114; Addison v. [New Orleans Sav.] Bank, 15 La. [527] 529; Succession of Dupuy, 4 La.Ann. [570] 571; Burbridge v. Chinn, 34 La.Ann. 681.’ ”

We find as a result of the application of Article 1609 of the LSA-Civil Code there was privity between the estates of Mr. and Mrs. Hill and their possessions were susceptible of being tacked on or joined to total thirty years of acquisitive prescription.

Since we have concluded the character of the possession of Hill over the land in dispute as determined by the Supreme Court in Hill v. Richey is' not different from that exercised by him and his wife during the more than thirty years preceding the controversy between the parties herein, it follows that the defendant has fulfilled the essentials of the prescription of thirty years as prescribed by Articles 3499 through 3505 of the LSA-Civil Code.

For the foregoing reasons the judgment from which appealed should be and is hereby reversed and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of Robert Lee Hill and against William O. Richey, sustaining the plea of prescription of thirty years; and Robert Lee Hill is hereby decreed to be the owner of the following described property :

“A certain piece, parcel or tract of land * *■ * being, lying and situated in Sections 25 and 38, T5N, R4W, Rapides Parish, Louisiana, being more particularly described as follows: commence at a point on the western boundary of Section 25, which point is north of the southwest corner of Section 25, as shown on a plat of survey by Howard L. L’Heureux, dated October 5, 1949, marked ‘Plaintiff 2’ in Civil Suit 36,372 on the Docket of the Ninth Judicial District Court, Rapides Parish, Louisiana, and from said point run South 83° East a distance of 26.60 chains to establish the point of beginning of the property herein described; from said point of beginning run North 37° 30’ East a distance of 38.90 chains; thence run North 12° 45' East a distance of 49.60 chains; thence run South 1° 46' East a distance of 15.03 chains; thence run South 6° 13' East a distance of 8.41 chains; thence run South 6° West a distance of 7.17 chains; thence ran South 3° 54' West a distance of 23.08 chains; thence run South 30° 50' West a distance of 9.38 chains; thence run South 13° 29' West a distance of 21 chains; thence run North 83° West a distance of 24.56 chains to the point of beginning, and being all of the property between the red and yellow lines on the here-inabove described plat of survey.”

It is 'further ordered, adjudged, and decreed that plaintiff’s demands be and the same are hereby dismissed, plaintiff to pay all costs of this suit, including costs of appeal.

On Rehearing

AYRES, Judge.

The primary issue in this petitory action is the sufficiency of defendant’s possession to sustain his claim of ownership of the property involved under a plea of prescription of 30 years.

A history of the litigation pertaining- to the property the title to which is in question is recited by the Supreme Court in Hill v. Richey, 221 La. 402, 59 So.2d 434, 437, and by us in our original opinion wherein the issues were stated and the facts discussed.

A rehearing was granted to afford a reconsideration of the question of defendant’s possession, particularly in respect to its duration and, further, as to his possession of that portion of the tract west of the “yellow” line and south of Castor Bayou. The aforesaid action was a pos-sessory action. The Supreme Court, after reviewing the evidence in that suit, held that Hill and/or his wife had lived upon and cultivated this property and exercised other enumerated acts of ownership thereon since 1913 or for a period of time exceeding 30 years preceding the disturbance of defendant’s possession in 1947. Accordingly, that court held that Hill had the requisite possession of all the property between the two lines, that is, between the “red” line, contended as correct by plaintiff, and the “yellow” line advocated as correct by the defendant. Plaintiff, however, contends that the decision of the Supreme Court, since it involved a pos-sessory action, is decisive only to the extent, quality and character of defendant’s possession during the year next preceding the institution of that action and that its finding of fact relative to Hill’s possession prior to that year is not conclusive as such a finding was unnecessary to a decision of the issues then pending before the court. The trial court in the instant case was in agreement with that contention, as were we on the original hearing. We adhere to that opinion, wherein we stated:

“The decision of the Supreme Court in Hill v. Richey, since it involved a possessory action is decisive only as to the extent and quality of possession of Hill during the year preceding the filing of this suit. We must assume, therefore, that the findings of fact relating to the possession of Hill beyond such period should not be considered conclusive”.

We have reviewed the record of the evidence as was before the Supreme Court and as was augmented by additional testimony taken in the instant case. We are unable to conclude that this additional evidence justifies or warrants the formation of a different conclusion from that as found from a consideration of the record in the possessory action. While, as stated, the finding of fact by the Supreme Court as to Hill’s possession prior to the year next preceding the institution of such action is not conclusive or binding, yet, to say the least, its logic is persuasive. It is sufficient, however, to state that our most careful and painstaking review of the entire record brings us to the same conclusion.

We deem it unnecessary to again restate the facts as found to have been established by the records which have heretofore been reviewed in the opinion not only of this court but of the Supreme Court. However, in support of the conclusion reached herein, some of the more specific details of the established facts may be recalled, instances that apparently were not specifically referred to heretofore. For example, Hill testified that S. M. Stewart managed for 13 years Mrs. Clark’s property; that Stewart cut hay in the disputed area south of the bayou and west of the “yellow” line; that in 1913 sugar cane was grown between the bayou and the fence running from the hackberry corner, which, of course, was south of the bayou. He further testified that beginning in 1913 and continuing for three or four years thereafter, Frank Watkins, a tenant of Mrs. Clark’s, farmed a portion of her property both north and south of the bayou in the disputed area. In this, his testimony is corroborated by the testimony of Frank Watkins himself, who stated that on or about January 1, 1913, he moved on the property of Mrs. Clark and cultivated 17 acres of land, 10 acres of which were south of the bayou and seven acres north of the bayou and also north of a 40-acre meadow likewise north of the bayou, all within the disputed tract. During his sojourn of four years on this property, Watkins made railroad cross ties from timber obtained from the woodland area.

Reverting to S. M. Stewart, we find that he became acquainted with this property as early as 1895, and during that year and also in 1897 and 1898, as a representative of a tie company, timber from this land was acquired by him from Mrs. Clark for the manufacture of ties and piling. Similar operations were conducted beginning in 1902 and continued until 1907 or 1908. The evidence discloses that the timber for the piling and ties was cut and removed not only from Mrs. Clark’s property generally but from the particular area now in dispute. Beginning in 1906 or 1907 and continuing for 12 or 13 years thereafter, Stewart, as Mrs. Clark’s representative, cut hay from a meadow located between the two lines and north of the bayou. That portions of these areas, both north and south of the bayou, were once in cultivation is further made evident by the second growth timber thereon. Eugene Knight and A. S. McColour, as well as others, testified to this fact.

Considering these facts, as well as others which might be pointed out from the record, as well as the facts upon which we have heretofore based our conclusion, and upon the facts as detailed by the Supreme Court, where it stated:

“Plaintiff Hill or his wife, who had resided on this plantation since 1913, had 'actually farmed and cultivated all portions of the land between the two disputed lines which were susceptible of cultivation. They themselves or their tenants had grown and cultivated crops of corn, cotton, and hay, and these operations had been continued to the yellow line. Hill had grazed cattle, sheep, goats, and hogs over the entire tract, including the swampy portions, and on occasions had rented the property to others for grazing their cattle. From the swampy areas his tenants from time to time had cut ties. Furthermore, he had some livestock grazing on the tract at the time of the trial. He had also sold the timber on three different occasions from the swampy areas, and his purchasers were engaged in the cutting and removal of such timber on each occasion for several months. On one of these occasions a large crew, whose operations were extensive, actually were engaged in the cutting and removing of timber for approximately eight months”,

the conclusion inevitably follows that the possession upon which defendant relies began at the latest in 1913, if it does not, in fact, have a more ancient origin. Such possession was held sufficient to support a possessory action. It is likewise adequate to maintain a petitory action. The nature and character of the possession required for the maintenance of a possessory action by one claiming without title is the same as that of the possession upon which is fixed the prescription of 30 years. C. P. Art. 49; LSA-C.C. Arts. 3499-3505; Hill v. Richey, supra.

It is, therefore, a matter of no importance as to which of the dates is accepted as the beginning of the possession relied upon by the defendant Hill, for, in any event, such possession has continued uninterrupted for an interval of time spanning a period of more than thirty years previous to the disturbance of his possession occurring in 1947, and, for the reasons herein assigned, it is likewise clear that such possession extended to the area of the disputed tract south of the bayou.

Nevertheless, appellee most earnestly urges that defendant has failed to establish his possession for the requisite period of time or to fix exactly the beginning of his possession, without which it is contended under the authority of Brewer v. Yazoo & M. V. R. Co., 128 La. 544, 54 So. 987; Roussel v. Railways Realty Co., 132 La. 379, 61 So. 409, 833, and Brown v. Glass, 3 La.App. 38, he cannot prescribe. The record in our opinion sufficiently establishes that the possession relied upon by defendant began, at least, no later than 1913 and that, accordingly, this contention is likewise without merit.

Accordingly, and for the reasons herein assigned, the plea of prescription of 30 years was properly and correctly sustained and our original decree and judgment is reinstated and made the final judgment of this court.

And, it is so ordered.


author: HARDY, Judge.

text:
    THREE WAY FINANCE COMPANY, Plaintiff-Appellee, v. Joseph W. CALLENDAR et al., Defendants-Appellants.
    No. 8449.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Lovell E. Hayden, III, Monroe, for appellants.
    McHenry, Lamlcin, Snellings & Breard, Monroe, for appellee.
   HARDY, Judge.

Plaintiff-appellee has filed a motion to dismiss defendant’s appeal in the instant case on the ground that the filing fee requisite to lodging the transcript of appeal in this court has not been paid by appellant.

The pertinent and undisputed facts set forth in plaintiff’s motion are that a money judgment was rendered in favor of plaintiff and against the defendants, in solido, in the Fourth District Court for Ouachita Parish on February 9, 1955, and was read and signed on February 10, 1955; th:-; on the same date defendants entered orders of suspensive and devolutive appeal, returnable on or before March 25, 1955; that on February 23, 1955 defendants-appellants filed with the clerk of the district court a cash bond with respect to the devolutive appeal in the amount of $100, being the amount fixed by the court in its order granting defendants’ appeal; that on date of filing this motion to dismiss the appeal, October 17, 1955, the return date and the days of grace had long elapsed; that no extension of time for filing the transcript has been asked by nor granted to appellants; that the transcript has not been lodged in this court, and that the fee of $5 required to be deposited with this court as a condition precedent to the filing of the appeal has not been paid.

Under the provisions of Article 590 of the Code of Practice, appellee, proponent of the motion to dismiss, obtained and brought up to this court the record of the suit and deposited, upon the filing of this motion, the sum of $5 as a filing fee, solely for the purpose of properly lodging and docketing the motion with this court.

In answer to appellee’s motion to dismiss, appellants, through- brief of counsel in opposition to the motion, contend'that there is more than sufficient money in the hands of the clerk of the district court to care for the payment of the filing fee required in lodging an appeal in this court, and that it is the responsibility of the clerk of the district court to pay the filing fee and send up the record. In support of this contention counsel cites LSA-R.S. 13:4445, which reads as follows:

“The respective clerks of the district courts, the Parish of Orleans excepted, whenever advance deposits for costs of appeal to courts of appeal have been made with them, shall transmit, with the records in the appealed cases, to the clerks of the courts of appeal, the advance deposits.” (Emphasis supplied.)

Counsel cites the holding of this court in Osborne v. Mossler Acceptance Corp., 24 So.2d 655, and the cases of Succession of Bickham, 197 So. 924, and Vinyard v. Stassi, 152 So. 161, both decided by the First Circuit Court of Appeal.

The cases cited are authority for nothing more than the proposition that the clerk of the district court is responsible for transmitting the amount of the filing fee when the same has been deposited with him for such purpose.

Counsel’s argument that there was money in the hands of the district clerk sufficient to pay the filing fee in this court is not reflected by the record. According to the only facts which are before us, appellants have deposited the amount of the devolutive appeal bond, in cash, with the clerk of the district court. There is no showing that any part of this amount, deposited as a bond, is available for use in paying the filing fee to this court for the lodging of the appeal. It is not even contended by counsel that the clerk of the district court was instructed to pay the filing fee out of any funds in his possession, nor that any money was deposited with him for this specific purpose. In the absence of any such factual showing the argument necessarily fails.

The identical point here at issue has been several times decided by this court; Danna v. Yazoo & M. V. R. Co., 154 So. 365; Varnell v. Babin, 13 So.2d 495; Johnson v. Louisville Fire & Marine Ins. Co., 49 So.2d 462; Automobile Ins. Co. of Hartford, Conn. v. Dykes, 50 So.2d 643.

In the above cases the holding has been uniform to the effect that an appeal will be dismissed, on motion, in cases where the fee for filing of the transcript of appeal has not been paid or has been paid only after the expiration of the return day and the three-day grace period following thereafter.

It follows that the motion to dismiss the appeal is well founded, and, accordingly, the motion is sustained and the appeal dismissed at defendants’ cost.


text:
    Cathel D. THOMAS et al., Plaintiffs-Appellants, v. Vivian WALLER et al., Defendants-Appellees.
    No. 8430.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Rehearing Denied Jan. 9, 1956.
    Writ of Certiorari Denied Feb. 23, 1956.
    Dhu & Lea S. Thompson, Monroe, for appellants.
    Oliver & Oliver, A. E. Montgomery, Jr., Monroe, for appellees.
   GLADNEY, Judge.

The plaintiff, Cathel D. Thomas, and his subrogated insurer bring this action against Leon Waller and his wife, Vivian Waller, to recover for damage sustained by a Chevrolet automobile owned by Thomas which was involved in a collision with a Chevrolet truck operated by Vivian Waller and owned by her husband. The accident happened in or near the intersection of Washington Avenue and North 10th Street in the City of Monroe, on April 18, 1954. At the time of the accident the atmosphere was clear and the streets were dry. A Monroe traffic ordinance designated Washington Avenue as a right-of-way thoroughfare over North 10th Street. Just prior to the collision plaintiff proceeded south along North 10th Street, entered its intersection with Washington, and was then engaged in executing a left turn when the right rear fender of his automobile was struck by the right rear fender of the truck being operated by Mrs. Waller, who, at the time, was driving west on Washington Avenue.

By way of defense to the action instituted by plaintiffs, defendants first filed an exception of no cause and no right of action, which exception apparently is no longer urged, answered denying fault, and urged a counter or reconventional demand for damage sustained by the truck. The trial court with written reasons for its decision, following a trial on the merits, found both drivers negligent and rejected both the principal demand of plaintiffs and the reconventional demand made by the defendants. From the judgment plaintiffs have appealed.

Thi? charges and counter charges of negligence herein made may be generalized: plaintiffs aver Mrs. Waller was driving at an excessive rate of speed, that she did not maintain proper control of the vehicle she was driving, and that she was negligent in not keeping a proper lookout; defendants assert Thomas was guilty of negligence in entering a favored street in disobedience to a stop sign without first appraising traffic conditions on Washington Avenue and by entering the intersection when it was unsafe to do so.

Thomas testified he was driving south on North 10th Street when he arrived at Washington Avenue, at which place in obedience to a stop sign, he came to a complete stop, looked in both directions and saw the Waller truck approaching the intersection from the east a block away. He then proceeded to cross the intersection and turned left into the south lane of Washington Avenue when his car was struck by the defendants’ truck. He further stated that the right front fender of his automobile was struck by the right rear fender of the defendants’ truck, and after the impact the truck continued on passing his car on the right and finally came to rest in the ditch on the west side of North 10th Street and the south side of Washington Avenue. He testified his car stopped almost at the place of impact. This point was fixed by plaintiff, Officer Simpson and other witnesses as being in the south traffic lane of Washington Avenue about ten feet east of the intersecting line of North 10th Street. City Officer J. E. Simpson quickly arrived at the scene following a telephone call from Mrs. Waller. The testimony of Simpson fixed the point of impact as stated and he testified further that he observed skid marks eighty-four feet in length made by the truck. He first said the skid marks started one hundred fifty feet east of the intersection oh the north side of Washington Avenue, continued west and then angled south into the south side of Washington Avenue to the place of collision. He modified this testimony by changing the one hundred fifty feet to about one hundred feet.

Mrs. Waller testified her vehicle was practically to the intersection when Thomas’ car suddenly entered the intersection without stopping and, thus confronted with an emergency, she turned her car to the left into the south traffic lane of Washington Avenue in an effort to avoid the resulting collision. She denies that she was driving at an unlawful rate of speed and asserts that the accident was due entirely to Thomas’ unsafe entry into the intersection. Called on behalf of defendants were several colored witnesses, including R. J. Butler, Jefferson Parker and Elvie Parker, each of whom testified that Thomas did not stop before entering the intersection. They variously estimated the speed of the Chevrolet truck at from twenty-five to fifty miles per hour.

After carefully reviewing the record we have concluded, as did the trial judge, that both drivers must be held guilty of acts of negligence which constituted proximate causes of the accident. Certainly if the tires of the truck registered skid marks eighty-four feet in length leading up to the place of collision, Mrs. Waller was driving at an excessive rate of speed, and a rate of speed in excess of the limit fixed by the Monroe City traf-. fic ordinance. The preponderance of the evidence indicates Thomas failed to stop in obedience to a stop sign prior to entering the intersection and was also negligent in attempting to enter Washington Avenue without having carefully observed other traffic approaching the intersection.

It is a frequent pronouncement of this and other appellate courts of the state that when confronted with a stop sign created by proper city officials, in addition to being legally obligated to bring his vehicle to a complete stop, a motorist is held to the duty of appraising traffic conditions at intersecting streets and making certain the way is clear for him to make safe passage across the intersection, and the act of stopping and then proceeding forward in the immediate path of an oncoming vehicle at such intersection constitutes negligence. White v. Glass, La.App.1955, 78 So.2d 57 and authorities cited therein.

It is our conclusion that the findings of the judge a quo are correct, and that accordingly the judgment from which appealed should be and it is hereby affirmed at appellants’ cost.


text:
    MOTORS SECURITIES COMPANY, Inc., Plaintiff-Appellee, v. Ben CRAWFORD, Defendant-Appellant.
    No. 8158.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Dhu and Lea Thompson, Monroe, for appellant.
    Pipes & Pipes, Monroe, for appellee.
   HARDY, Judge.

This appeal by defendant from an adverse judgment has been before this court on a previous occasion, at which time it was remanded to the lower court with instructions; Motors Securities Co., Inc. v. Ben Crawford, La.App., 76 So.2d 336.

The facts involved are set forth in the opinion of the court in the case cited supra. After remand, the testimony of Inez Butler, one of the witnesses to the alleged execution by defendant of the written release upon which plaintiff largely relies, was taken pursuant to the instructions of this court, and the matter has now been returned for disposition of the appeal.

The testimony of Inez Butler establishes the fact that she was not present at the time o-f the execution of the alleged release and extension agreement by the defendant, and we regard this fact as being vitally important inasmuch as it definitely and conclusively discredits the testimony of plaintiff’s agent, J. H. Scoggins, who was in sole and complete charge of the negotiations with defendant with reference to the surrender of the automobile. The effect of the elimination of Scoggins’ testimony as having no probative value whatsoever is to turn the balance of the weight of the testimony adduced on trial in favor of defendant’s contention that he surrendered the automobile upon the representation of plaintiff’s agent, Scoggins, that such, surrender of possession would effect the release of his indebtedness for the unpaid balance on the note sued upon.

Before this court counsel for plaintiff continues to urge that the evidence still preponderates in favor of plaintiff’s denial of defendant’s claim of release. We do not think the record justifies this conclusion. The written instrument itself is ineffective because, as pointed out in our first opinion, the face of the document itself clearly evidences the fact that it was not properly filled out at the time the defendant’s signature was affixed. Counsel further points to the testimony of one E. J. Davidson, a witness for plaintiff, to the effect that defendant admitted his indebtedness to plaintiff at a time subsequent to the execution of the so-called extension agreement. We do not think the testimony of the witness, Davidson, is at all convincing on this point. Davidson was the used car dealer who had originally sold the automobile to defendant and was the endorser, with recourse, upon defendant’s note. His testimony is too vague and uncertain as to the circumstances of defendant’s purported admission to overcome the latter’s definite and consistent denial.

Careful examination of the record relating to the circumstances surrounding the transaction between defendant and Scoggins involving the delivery of the automobile and the title papers in connection therewith by defendant, and further consideration of the effect of Scoggins’ false and discredited testimony convinces.us that the district judge was manifestly in error in his finding of facts. It follows that the judgment should be reversed.

In view of our conclusion it is obvious that the surrender of the automobile in consideration of a release of defendant’s indebtedness on the chattel mortgage note serves to vest title to the mortgaged property in plaintiff, and, as a result, it is unnecessary to burden the judgment in this case with a recognition of plaintiff’s lien and privilege.

For the reasons assigned the judgment appealed from is reversed and set aside and there is now judgment in favor of defendant, Ben Crawford, and against the Motor Securities Company, Inc., rejecting plaintiff’s demands at its cost.