text:
    Elizabeth MAGEE, Appellant, v. CITY OF JACKSONVILLE, a municipal corporation, Appellee.
    Supreme Court of Florida. Division A.
    May 18, 1956.
    Rehearing Denied June 12,1956.

      Albert J. Datz, Jacksonville, for appellant.
    William M. Madison and Inman P. Crutchfield, Jacksonville, for appellee.
   THORNAL, Justice.

Appellant Magee, who was plaintiff below, seeks reversal of a summary judgment entered in favor of appellee City of Jacksonville, which was defendant below, in an action for damages allegedly resulting from a defective sidewalk.

The question for determination on appeal is whether the notice of injury served upon the City prior to the filing of suit was sufficient to meet the requirements of Chapter 11564, Laws of Florida, Extraordinary Session, 1925, which was a local Act applicable only to Jacksonville requiring notice of injury as a condition precedent to maintaining suit against the City.

The complaint sought recovery of damages for injury caused by the alleged defective condition of a sidewalk in the City of Jacksonville. It alleged generally the service of the required notice. The answer denied that the notice was sufficient to meet the requirements of Chapter 11564, supra, the pertinent parts of which read as follows, to wit:

“No suit shall be maintained against the City for damages arising out of its failure to keep in proper condition any sidewalk * * * unless it shall be made to appear * * * that written notice of such damage was, within thirty days after the receiving of the injury, given to the City Attorney with such reasonable specifications as to time and place and witnesses as would enable the city officials to investigate the matter; * *

This provision is sometimes referred to by the parties as Section 603 of the City’s Charter.

On motion for summary judgment it was revealed by affidavits that the following correspondence was exchanged between the Attorney for the appellant and the City Attorney, to wit: On August 13, 1954, the City Attorney received from the Attorney for the appellant a letter dated August 12, 1954, reading as follows:

“You are hereby notified that Mrs. Elizabeth Magee of 4054 Green Street, Jacksonville, Florida, was injured due to the defective condition of the sidewalk on the south side of 6th Street, between Hubbard and Market Streets in Jacksonville, Florida. This injury took place during the daytime on July IS, 1954. It was witnessed by Mrs. Nettie Mae Lee of 1435 Market Street, Jacksonville, Florida.”

On August 13, 1954, the City Attorney by letter advised the Attorney for appellant as follows:

“The City hereby expressly rejects your said letter of August 12 as a notice of claim for the reason that it fails to comply with Section 603 of the City Charter of this municipality. The place of the alleged injury is not recited with such reasonable specification as to place as would enable the City officials to investigate the matter.
“Accordingly, any and all liability is hereby expressly denied.”

Thereafter on August 17, 1954, by letter, the appellant responded to the City Attorney that the defective sidewalk was located immediately in front of the residence known as 132 East 6th Street, Jacksonville, Florida, and on August 18, 1954, the City Attorney rejected the letter as a notice of claim on the ground that the original notice failed to state the place of the injury with “such reasonable specifications” as were required by the City Charter and that the time for serving notice had expired. Another affidavit reveals that the south side of 6th Street in Jacksonville between Market Street and Hubbard Street is a distance of approximately 160 yards without the intervention of other streets.

The trial judge adopted the view that the notice was insufficient as a matter of law and thereupon granted the City’s motion for summary judgment. This appeal followed.

The appellant contends that the notice was adequate to meet the requirements of the Statute while the appellee takes the position that under our prior decisions, the notice was legally insufficient.

We must test the notice as it was given in the letter of August 12, 1954, rather than by the additional information furnished by the appellant in her letter of August 17, 1954. The injury occurred July 15, 1954. Consequently under the Charter a sufficient notice must have been given within thirty days after the date of injury.

Local Acts of the nature of the one under consideration have been consistently upheld by this and other courts. Justification for these statutes is that a municipality is entitled to a reasonable notice of a pending claim against it in order to enable the City to make a thorough investigation of the claim before admitting or denying liability in connection with a demand that might require the expenditure of public funds. A reasonable time limitation is appropriate so that the City might have notice within a reasonable proximity of time after the occurrence of the injury in order to interview witnesses and make a thorough investigation promptly. On the other hand, we have also consistently recognized that municipalities may be liable for negligence in the maintenance of, or in the failure to maintain, the public streets if such negligence results in injury and if the defect in the street was known or should have been known to the municipal officials.

Assuming that a claimant has a meritorious cause against a municipal corporation, he should not be deprived of his day in court by an unreasonably technical and burdensome application of a “non-claim” statute if the notice given by him is served on the proper municipal official within the time required and is drafted with sufficient detail to accord to the municipality a fair and reasonable opportunity to make a sufficient investigation to determine within the sound judgment of the proper officials whether or not the claim has merit.

This court has in some measure required a relatively strict compliance with the requirements of statutes of the nature under consideration to the end that the public might receive the full benefit of the notice required by the Legislature. On the other hand it appears to us that a just claim, if one exists, should not be denied by the application of strained constructions and the imposition of requirements for minute detail where an examination of the entire notice reveals that it furnishes to the City-officials adequate information within the framework of the statutory requirements, in sufficient detail to enable them to make a thorough investigation of the assertéd claim.

Reverting to the notice in the instant case, it will be observed that the City Attorney was in due time furnished with the name of the claimant, the time of the injury, the name and address of a witness and a description of the place of the injury to the extent that it is stated that the injury occurred on the south side of a particular street between two specifically named streets. The distance between the two streets so named being shown by affidavit to be about 480 feet. It is our view that the notice met the requirements of the City Charter which stipulated that the time and place and witnesses be furnished “with such reasonable specifications” as would enable the City officials to investigate the matter.

We realize that the word “reasonable” cannot be defined with any degree of mathematical certainty. However “reasonableness” is the standard by which the Legislature provided that the notice be measured. The test of what is “reasonable” or “unreasonable” may necessarily vary under particular factual situations. Purely fo'r purposes of illustration, if the notice in the instant case had merely stated that the injury occurred “on Main Street” in the City of Jacksonville, it could hardly be contended that such would be reasonable because it is generally known that Main Street in'Jacksonville is a public way extending for miles through the City. On the other hand, in the notice before us the area within which the defect allegedly existed was described within such reasonably defined limits that it would certainly appear that a routine investigation of the well-defined area would have revealed the locus of the defect, especially so when the notice likewise specifically named a witness who supposedly at least could have pointed to the particular spot where the injury was alleged to have occurred.

While there are innumerable decisions involving the general question before us, our research reveals that there are few which offer analogous factual situations. The most nearly analogous is Youngvert v. City of Chicago, 174 Ill.App. 299, where it was stated that a notice which advised that the accident occurred “in the City of Chicago on, tip-wit, the west side of Center avenue, between to-wit, Sixteenth and Seventeenth Streets” was sufficient to comply with the test of reasonable accuracy in stating the place of the injury.

In Lyman v. County of Hampshire, 138 Mass. 74, the Supreme Judicial Court of Massachusetts held sufficient a notice which stated that the injury was received “upon the bridge in said Huntington, known as and called Norwich Bridge, * * * ” The facts revealed that actually the bridge was 218 feet in length and that while the notice stated that the defect consisted of a hole in the bridge, there were in fact three holes in the bridge. It was determined that the notice was not fatally defective as a matter of law.

In ruling .as we do in the case before us, we have not overlooked the recent decisions of this court in Olivier v. City of St. Petersburg, Fla.1953, 65 So.2d 71; and Buck v. City of Hallandale, Fla.1956, 85 So.2d 825. In the St. Petersburg case the notice served upon the City merely stated that the. claimant was injured “by a defect in the street caused by resurfacing o.f the street”. The street itself was never mentioned. The notice was completely silent in regard to the place of the accident. In the Hallandale case the notice failed completely to furnish any statement as to the time of the accident, the place of the accident was not mentioned at all, and it was totally lacking in any, references to . witnesses.

We have not been referred to any decisions of this or any other court that a notice such as the one under consideration fails to meet the standard of reasonableness of specifications that should control m cases such as this. While technical accuracy of such notices is certainly recommended, we are of the view that the notice in this case is within the requirement of reasonableness stipulated by the Legislature.

We therefore hold the notice in the case before us was not fatally defective as a matter of law and that when considered solely in the light of the facts presented by the affidavits on the motion for summary judgment, it sufficiently met the requirements of the Jacksonville Charter.

It was therefore error to award a summary judgment in favor of the City. The judgment appealed from is reversed and the cause is remanded for further proceedings consistent with this opinion.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.


source: Caselaw Access Project

author: THORNAL, Justice.

license: Public Domain

text:
    George D. NOELING and Patricia Noeling, his wife, Petitioners, v. STATE of Florida, Respondent.
    Supreme Court of Florida. Division A.
    May 18, 1956.

      P. Donald DeHoff, Jacksonville, for petitioners.
    Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Asst. Atty. Gen., for respondent.
   THORNAL, Justice.

Petitioners George D. Noeling and Patricia Noeling, his wife, by petition for cer-tiorari seek review of an order of the Circuit Court which affirmed an order of the Juvenile Court declaring the infant daughter of petitioners to be a dependent child and permanently committing the baby to a licensed child-placing agency for adoption.

The points assigned for consideration on review are that the evidence before the Juvenile Judge failed to support the conclusion that the child was dependent and that the order permanently committing the child for adoption was erroneous because of alleged lack of statutory notice to petitioners.

For reasons hereinafter stated it is unnecessary to delineate in detail all of the facts of the unfortunate situation revealed by the record. It is necessary, however, that we summarize the procedural aspects of the case.

On December 28, 1954, a counselor of the Juvenile Court of Duval County filed a petition alleging that the 13-month-old baby of the Noelings was a dependent child because of alleged lack of proper pa-rental care and abandonment. The petition was quite informal but it prayed that the court adjudged the child dependent and that the child be permanently committed to a licensed child-placing agency for adoption. On February 2 and February 7, 1955, extensive testimony was heard by the Juvenile Judge. It is clear that the mother was present at the first hearing and that the mother and father were both present at the second hearing.

On April 28, 1955, after holding the matter under consideration for more than two months, the Juvenile Judge entered an order that the child was dependent and committed her “to the care, custody and control” of a licensed child-placing agency. This order did not permanently commit the baby to the institution for subsequent adoption but the court did retain jurisdiction of the cause and the child for the purpose of making other and further orders “as may from time to time be necessary”. There was no appeal from the order of April 28, 1955.

On May 31, 1955, the Juvenile Judge entered another order apparently without further hearing in which he again found the child to be dependent and stated that prior to the making of this order, the mother and father had gone to New Jersey and that the child “is hereby permanently committed to the Children’s Home Society of Florida for subsequent adoption”. The order recited that the attorney for the parents “specifically waived notice of the appearance of the parents before the Court this day”. On appeal to the Circuit Court, this order of May 31, 1955, was reversed for lack of adequate findings of fact.

Thereafter, on September 21, 1955, the Juvenile Judge entered an 4order of compliance with the mandate from the Circuit Court in which he recited briefly the facts on which he based his conclusion and then reaffirmed the previous order permanently committing the baby to the Children’s Plome Society for subsequent adoption. The order of the Juvenile Court of September 21, 1955, was appealed to the Circuit Court and on December 1, 1955, the Circuit Judge affirmed the same. It is this order of the Juvenile Court, dated September 21, 1955, and the affirming order of the Circuit Court, dated December 1, 1955, which are submitted to this court for review in the instant proceeding.

Petitioners contend that the evidence submitted to the Juvenile Judge failed to meet the statutory requirements to justify an adjudication of dependency and further that the order permanently committing the child for subsequent adoption was erroneous because of lack of notice to the parents which is required by statute.

The respondent contends that the evidence was sufficient, that the scope of review in this proceeding precludes our consideration of the sufficiency of the evidence and that the court had jurisdiction of the parents which made unnecessary the service of the notice preliminary to the entry of the order of permanent commitment and subsequent adoption.

The record presents for consideration certain aspects of Chapter 39, Florida Statutes 1955, F.S.A., otherwise designated as Chapter 26880, Laws of Florida 1951, generally known as the Juvenile Court Act. It is necessary that we determine for the first time the scope of review available to this court on petition for certiorari attacking an order of the Circuit Court sitting as an appellate court to review the action of the Juvenile Court under the cited statute.

Section 39.09, Florida Statutes, F.S.A., provides that the hearings shall be conducted by the Juvenile Judge without a jury in an informal manner and that the rules of evidence used in equity cases in the Circuit Courts shall apply. Relying on this provision, petitioners contend that we should now review the evidence as we would in an appeal from the Circuit Court in any chancery matter.

Section 39.14, Florida Statutes, F.S.A., authorizes an appeal to the Circuit Court of the Circuit within which the Juvenile Court is established and by Section 39.14 (7), Florida Statutes, F.S.A., it is provided:

“(7) On appeal the circuit court shall decide only whether a lawful order has been entered by the juvenile court, and shall not substitute its judgment for that of the juvenile court in discretionary matters.”

By Section 39.14(12), Florida Statutes, F.S.A., any party dissatisfied with the decision of a Circuit Court on appeal may apply to the Supreme Court for writ of cer-tiorari.' The pertinent portion of the last cited Section is the following :

“ * * * The application for a1 writ of certiorari and, if the writ is granted, the proceedings in certiorari thereafter, shall be governed by the same law and rules as are applicable to other proceedings in certiorari in the supreme court, * *

If is perfectly obvious from an examination of the language of the entire Act as well as the consideration of its legislative history and its historical background that it was the purpose and intent of the Legislature in enacting the Act under consideration to provide a forum which could consider the problems of dependent children in an informal fashion without the necessity of applying the strictness and technicalities that often accompany routine litigation. This is so for the reason that the statute is permeated with indications that in arriving at his conclusion, the Juvenile Judge should in every instance be guided by an effort to consider first and primarily the welfare of the child. While the rights of the parents must, of course, always be observed, nevertheless, these parental prerogatives are to be evaluated in the light of what appears to be the best interests of the juvenile.

By Section 39.14(12), Florida Statutes,. F.S.A., this court is directed to apply the same law and rules as are applicable to other proceedings in certiorari when a matter of this nature is presented to us for review. Although this particular problem has not previously been resolved, we are of the view that the situation is strongly analogous to the scope of review heretofore defined by us in appellate matters involving orders of probate courts. The Juvenile Judge in the first instance hears all of the evidence, has an opportunity to see the witnesses and evaluate the credibility of their testimony as they present it to him. A trained and experienced Juvenile Judge as he- views the parties, and witnesses in person is in a much better position than this court to determine whether or not they should be believed, the state of their varied interests in the outcome and the over-all effect to be given to their testimony from the witness stand.

We therefore hold that in reviewing the order of the Juvenile Judge in matters of this nature, the scope of review is limited to a determination of the, question whether he misinterpreted the legal effect of the evidence as a whole or whether in some fashion he departed from the essential requirements of - the law. This has consistently been our position in probate matters and we feel that the rule is equally applicable in reviewing orders of Juvenile Courts under Chapter 39, Florida Statutes, F.S.A. For the analogous rule, see In re Thompson’s Estate, Fla.1955, 84 So.2d 911; and In re Zimmerman’s Estate, Fla. 1956, 84 So.2d 560, and cases there cited. See also 5 Fla.Jur. “Certiorari” Sections 29 and 31.

By applying this rule to the evidence revealed by the record, we find that the Juvenile Judge had substantial competent evidence upon which to base his conclusion that the child was dependent and that he did hot misinterpret the legal effect of the evidence as a whole. It would serve no useful purpose to set forth the evidence in detail. On this point the record has been carefully examined and it leads us to the conclusion heretofore announced.

This brings us then to the second question presented by the petition. The Juvenile Court order of April 28, 1955, which adjudicated the dependency of the child and temporarily committed it to the Children’s Home Society was not appealed. It therefore remains an effective order of the Juvenile Court until changed in some fashion by that court which expressly reserved jurisdiction by the order itself. However, the order of May 31, 1955, which further adjudicated the dependency of the child and permanently committed it to the licensed child placing agency for adoption, was reviewed by the Circuit Judge and r«versed. The Juvenile Court order of September 21, 1955, merely complied with the requirements of the order of reversal entered by the Circuit Judge and re-established the permanent commitment of the child for subsequent adoption.

We are now called upon to determine whether the aspect of the order which permanently committed the baby for subsequent adoption reflects a departure from, the essential requirements of the law because of the failure of the Juvenile Court to notify the parents of the infant that the petition ■ for permanent commitment had been .filed, and by such notice direct the parents “to show cause why the petition should not be granted” as required by Section 39.11(4) (a), Florida Statutes, F.S.A.

The petitioners contend that in order to commit their child permanently for subsequent adoption, it was necessary that someone file a separate petition, additional to the original petition heretofore described. We do not consider that this was necessary. There is no reason why the original petition cannot cover both a prayer for determination of dependency as well as for an order permanently committing for subsequent adoption. However, although the statute itself provides that it shall be liberally construed in conformity with its declared purpose, it is equally clear that by Section 39.11(4), the Legislature intended to establish an orderly , process for notifying the parents that under certain -conditions it was contemplated that their •child might be permanently removed from their custody and placed under the custody -of the State for subsequent adoption by ■someone else.

Without quoting in detail the provisions of Section 39.11(4), Florida Statutes, F.S.A., it is sufficient to point out that it is contemplated by this Section that the parents of the child should be specifically notified that the drastic action of ■depriving them of their natural right to their child is contemplated and that they should have an opportunity to defend -against the contemplated action by the State. Personal service is required if possible but constructive service is available if the parents are beyond the jurisdiction. We deem it necessary to emphasize the portion of Section 39.11(4), Florida Statutes, F.S.A., which reads as follows:

“(c) .Notice as prescribed by this section may be waived, in the discretion of the judge, wl^ere the living parents, and any legal guardian, of the child, execute, before two witnesses and a. notary public or other officer authorized to take acknowledgments, a written surrender of the child to a licensed child placing agency.”

The last cited provision forces us to a conclusion that unless the statutory notice is given to the parents, the only manner in which it can be waived is for the parents to execute a formal written surrender of the child.

We revert to a consideration of the procedure as followed in the instant case. The hearing on the original petition was held February 2 and February 7, 1955. At the conclusion of this hearing the Juvenile Judge, on April 28, 1955, entered an order "ysdiich merely committed the infant temporarily to the custody of the Children’s Home Society. While it is true that by this order, the Judge reserved jurisdiction to enter further orders, we are of the view that due process required that preliminary to the entry of any further order that would have the effect of permanently depriving these petitioners of the custody óf their child, they should have been notified as required by the statute or in the alternative that they waive such notice in the manner stipulated by the statute. In the absence of service of notice, the only method by which notice could be waived was that provided by the Act itself. We do not overlook the fact- that the Juvenile Court had .already acquired jurisdiction of the child and the cause. We are, however, of the view that in order to exercise jurisdiction to the extent of permanently committing the infant for subsequent adoption, after having merely placed the child temporarily in the custody of the Home, compliance with the statutory requirements for notice was essential to a valid subsequent order of permanent commitment. For analogous situations under the adoption law see In re Stonehouse’s Adoption, 155 Fla. 223, 19 So.2d 788; and In re Johnson, 157 Fla. 25, 24 So.2d 711. For an analogous principle see Moore v. Lee, Fla. 1954, 72 So.2d 280, 42 A.L.R.2d 1112, where we held that in a proceeding to modify a final decree awarding custody of a minor child, the defendant is entitled to adequate and proper notice of the proposed modification proceeding. Under Section 39.11(4), Florida Statutes, F.S.A., adequate and proper notice was as therein provided.

Jurisdiction of Juvenile Courts under Chapter 39, Florida Statutes, F.S.A., must be exercised in strict compliance with the statutory requirements. We cannot overlook the fact that although the welfare of the juvenile is the guiding star that leads the Judge to his conclusion, nevertheless, the natural right of a parent is not to be lightly regarded. On the contrary, it should be respected with all of its traditional sanctity. To deprive one permanently of his offspring is highly drastic action and the parent, should be given every fair and reasonable opportunity to demonstrate by a proper showing that the State should not take his child away from him.

The rule of this opinion has been followed in other states. In the case of In re Frinzl, 152 Ohio St. 164, 87 N.E.2d 583, 588, the Supreme Court of Ohio pointedly held:

“Because of the relationship between parents and children, and because of the social consequences involved, even though juvenile agencies have undoubtedly made a great contribution to social and community welfare, a Juvenile Court cannot make a valid order changing temporary commitment of a dependent child to a permanent one without a service of notice upon the parent of the child, strictly in accordance with the law.”

See also 43 C.J.S., Infants, § 8, p. 59; In re Sutton, 132 W.Va. 875, 53 S.E.2d 839; State ex rel. Clark v. Allaman, 154 Ohio St. 296, 95 N.E.2d 753; People v. Spiers, 17 Cal.App.2d 477, 62 P.2d 414.

Although in the case before us the court might upon a further hearing properly come to the conclusion that the unfortunate infant involved should be permanently withdrawn from the custody of the natural parents, we are of the view that due process in the withdrawal procedure require that the parents have a proper opportunity pursuant to notice to defend their parental rights and position. We have not overlooked the fact that the-permanent commitment recited that the parents were then out of the state and that their attorney of record waived the notice.. Flowever, we are forced to conclude that a waiver by an attorney under such circumstances is not within the general scope of an attorney’s authority to waive mere procedural requirements. Involved here was a substantial personal right that could! be waived only in the manner provided by law.

The statute involved stipulated expressly the only manner in which the notice could1 be waived. To accomplish and effect this waiver of notice, the express written consent of the parents was essential. No such-consent appears in this record.

In view of the foregoing we are led to the conclusion that due process of law requires that these parents be given an opportunity to appear again before the Juvenile Judge in defense of their position, if any they have, against the permanent commitment of their child to the custody of the State.

For the reasons stated, the prayer of the petition is granted as to that portion of the order of the Juvenile Judge dated September 21, 1955, which permanently committed the infant involved to the custody of the Children’s Home Society for subsequent adoption. As to that aspect of the matter, the order is quashed and the cause is remanded for further proceedings consistent with this opinion.

DREW, C. J., and TERRELL and HOBSON, JJ., concur.


text:
    PACIFIC MILLS, a corporation, Petitioner, v. HILLMAN GARMENT, Inc., a corporation, Respondent.
    Supreme Court of Florida. Division A.
    May 18, 1956.

      Broad & Cassel, Miami Beach, for petitioner.
    Irving M. Wolff, Miami, for respondent.
   THORNAL, Justice.

By petition for writ of certiorari the petitioner Pacific Mills, a Massachusetts corporation, which was plaintiff below, seeks review of an order of the Circuit Court which affirmed a judgment of the Civil Court of Record sustaining a motion to dismiss petitioner’s complaint in an action on a foreign judgment.

The question presented for our consideration is the correctness of the ruling of the lower court that the complaint showed on its face that the court which entered the foreign judgment lacked jurisdiction and that the judgment was therefore unenforceable in Florida.

Pacific Mills, plaintiff below, was a Massachusetts corporation that recovered a judgment against Hillman Garment, Inc., a Florida corporation, in the Supreme Court of New York County, New York. The complaint alleged that an arbitration proceeding was had between the parties in accord with Article 84 of the Civil Practice Act of New York, and that the judgment was entered by the New York court confirming the award agreed upon by the arbitrators. Attached to the complaint is an authenticated copy of the judgment and a copy of a written exhibit purporting to show that the defendant Hillman participated in the arbitration proceeding.

The complaint also alleged that the defendant participated in the arbitration proceeding and submitted a counterclaim therein. By motion to dismiss, the respondent Hillman, which was defendant below, attacked the complaint on the ground that it failed to state a cause of action upon which relief could be granted. The Judge of the Civil Court of Record of Dade County granted the motion to dismiss for the asserted reason that the complaint showed that the New York court lacked jurisdiction to enter the judgment, and that it was. apparent that the plaintiff below could not further amend its complaint to plead the basic requirements of jurisdiction in the New York court. Judgment was thereupon entered for the defendant Hillman.

On appeal the Circuit Court of Dade County affirmed the judgment of the Civil Court of Record. Petition for certiorari seeks review of this order, contending that it obviously constituted a departure from the essential requirements of the law.

Petitioner contends that the writ of cer-tiorari should be granted for the reason that under our Rules, it is necessary, only to plead the ultimate fact that a judgment was recovered in a sister state and moreover that the complaint actually showed that the New York court had jurisdiction.

Respondent contends that the complaint revealed on its face that the New York court lacked jurisdiction and that the judgment was therefore void.

30 F.S.A. Rule 1.9(e) of the Florida Rules of Civil Procedure reads as follows:

“(e) Judgment or Decree. In pleading a judgment or decree of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decree without setting forth matter showing jurisdiction to render it.”

A casual examination of this Rule reveals that in suing on a judgment of a court of a sister state, it is unnecessary to allege more than the actual judgment. Lack of jurisdiction in a foreign court is a defensive matter which should be set out in the answer. However, if the plaintiff undertakes to allege in his complaint the jurisdictional facts, then the sufficiency of the jurisdictional allegations may he tested by a motion to dismiss. This is so for the obvious reason that a party is bound by the allegations of its complaint and if such allegations reveal that the court of a sister state lacked jurisdiction to enter the judgment sued upon, such allegations may then be fatal to the complaint in the Florida court when assaulted by a motion to dismiss. See First National Bank of Cresson, Pa., v. Brown, 119 Fla. 761, 162 So. 142.

We revert to an examination of the complaint before us to determine whether it shows on its face that the New York Supreme Court lacked jurisdiction to enter the judgment. The trial judge was of the view that it did. Counsel for respondent contends that it did. The briefs fail to reveal any precedents or authorities to sustain this conclusion. Inasmuch as the complaint alleged that the judgment was recovered in accord with provisions of Article 84 of the Civil Practice Act of New York, it thereby placed in issue the provisions of this statute and under these circumstances we are justified in taking judicial notice of the statute of a sister state. Section 92.031, Florida Statutes 1955, F.S. A., and Kingston v. Quimby, Fla. 1955, 80 So.2d 455.

The pertinent provision of the New York statute, Civil Practice Act, is Article 84, Section 1450, which reads in part as follows :

“Remedy in case of default. The making of a contract or submission for arbitration described in section fourteen hundred forty-eight, providing for arbitration in this state, shall be deemed a consent of the parties thereto to the jurisdiction of the supreme court of this state to enforce such contract or submission and to enter judgment on an award thereon. * * * ”

Petitioner contended below that by participating in the arbitration proceeding in the State of New York, the respondent subjected itself to the jurisdiction of the New York courts to the extent that the New York Practice Act provides for the entry of the judgment on the award o.f the arbitrators if application for such judgment is made within one year after the filing of the award pursuant to notice served on the adverse party. Copy of the judgment attached to the complaint recited that such notice was given. See Article 84, Section 1461, Civil Practice Act of New York.

We are next confronted with the question as to whether these provisions of the New York Civil Practice Act so comport with our notions of due process as to accord to the New York judgment full faith and credit under our Federal Constitution, art. 4, § 1. An axiom of due process is that a judgment in personam entered by the court of a sister state without proper personal service or voluntary appearance of the judgment-defendant is a nullity and may be attacked on the ground that the court entering the judgment lacked jurisdiction. Markham v. Nisbet, Fla.1952, 60 So. 2d 393. By the same token, the requirements of due process under circumstances such as the one before us are met if the statutory procedure for obtaining substituted service is reasonably calculated to apprise the defendant that suit has been instituted against him and accords to him a reasonable opportunity to defend. Here there was a voluntary participation in the New York proceeding that set in motion the exercise of the judicial process.

Our traditional ideals of fair play and substantial justice demand that when a person is sued, he should have notice of the suit and an opportunity to defend. In the instant case the petitioner relied upon the provisions of the New York Civil Practice Act which by their own force granted jurisdiction to the Supreme Courts of that state to enter a judgment upon an arbitration award in those instances where the parties to the arbitration proceeding had either voluntarily participated in the proceeding or after proper notice had failed to participate. An examination of the New York statute suggests that in that state arbitration is actually quasi-judicial in nature and constitutes a part of the judicial process for arriving at a solution to disputes between parties-litigant. See River Brand Rice Mills, Inc., v. Latrobe Brewing Co., 305 N.Y. 36, 110 N.E.2d 545; and Republique Francaise v. Cellosilk Manufacturing Company, 309 N.Y. 269, 128 N.E.2d 750.

The principle upon which the petitioner here relies is that the respondent voluntarily participated in the New York arbitration proceeding and having done so, he, of his own motion, invited the exercise of the jurisdiction of the New York courts in accord with the applicable statute. We can find nothing fundamentally wrong with this principle. It appears to us that it accords with every essential requirement of due process of law. It could hardly be successfully contended that a nonresident who voluntarily employs the judicial processes of a state can thereafter dispute the authority of the jurisdiction which he himself has engaged to settle his rights in that particular cause.

We do not overlook the proposition that Florida follows the Common Law doctrine that parties cannot obligate themselves to an irrevocable agreement to arbitrate for the simple reason that such would be an encroachment upon the jurisdiction of our courts. See Flaherty v. Metal Products Corporation, Fla.1955, 83 So.2d 9; and Fenster v. Makovsky, Fla. 1953, 67 So.2d 427. At the same time Florida has provided a statutory procedure for judicial affirmation of an arbitration award and to that extent the entry of a judgment on the award of a board of arbitrators is certainly not offensive to the public policy of this state. Ogden v. Baile, 73 Fla. 1103, 75 So. 794. While under the law of this state an irrevocable agreement to arbitrate will not be specifically enforced, such a provision in a contract is not a nullity and will be recognized if the parties themselves proceed to employ the arbitration procedure provided by law. See Gantt v. Felipe Y Carlos Hurtado & Cia, 297 N.Y. 433, 79 N.E.2d 815. When an arbitration procedure is employed in a particular state then the law of the fdrum controls the disposition of the ultimate rights of the parties.

We have not been referred to any decision passing upon the enforceability in a sister state of a judgment entered in the New York courts pursuant to the arbitration procedure provided by their Civil Practice Act. However, in view of the fact that the respondent here, according to the complaint, actively participated in the New York arbitration proceeding which was governed by the law of the State of New York, we must assume that he was •aware of the applicable laws of that state and that when he did seek relief within that jurisdiction, he subjected himself to the exercise of the complete jurisdiction of the ■courts in New York in accordance with the various statutes under which he sought relief.

Our own state has enacted analogous statutes. For example, Section 47.16, Florida Statutes 1955, F.S.A., provides a form of substituted service of process upon nonresidents who engage in business in this state. We have held that under this statute, a nonresident who elects to engage in business in Florida thereby consents by operation of law to the designation of the Secretary of State as his agent to receive service of process. This court has upheld the constitutionality of this Act as providing the essential elements of due process of law. State ex rel. Weber v. Register, Fla.1953, 67 So.2d 619.

We cannot in principle distinguish between an Act that provides that a party subjects himself to the jurisdiction of the courts of a particular state when he voluntarily sets in motion a quasi-judicial proceeding that might ultimately lead to a judgment as a part of the same proceeding under the laws of that state and a statute which by its own force subjects a nonresident to a form of substituted service in a state by engaging in business in that state. We therefore conclude that the complaint in the case before us did not reflect by its own allegations a lack of jurisdiction in the Supreme Court of the State of New York. So far as the complaint here is concerned, it indicates on its face that the New York court did have jurisdiction to enter the judgment relied upon. The motion to dismiss therefore should not have been granted. A denial of the motion to dismiss will not preclude the respondent on a further hearing from setting up in its answer any lack of essential jurisdictional requirements such as the failure to give notice of the application for the judgment affirming the arbitration award. We merely hold here that the complaint was good against the motion to dismiss.

For the reasons set forth, the prayer of the petition must be granted, the order appealed from is quashed and the cause is remanded for further proceedings consistent with this opinion.

DREW, C. J., and TERRELL and HOB-SON, JJ., concur.


author: PER CURIAM.

text:
    CITY OF TALLAHASSEE, a Municipal Corporation, Appellant, v. Gladys BUCKLEY, Appellee.
    Supreme Court of Florida. En Banc.
    April 4, 1956.
    Rehearing Denied June 7, 1956.
   PER CURIAM.

Affirmed.


text:
    Joseph MILEGER and Helen Mlleger, Individually and as Husband and Wife, and Doing Business as the Southern Jewish Post, Appellants, v. Isadore MOSCOVITZ, Individually and Doing Business as Southern Jewish Weekly, Appellees.
    Supreme Court of Florida. Special Division B.
    May 9, 1956.
   PER CURIAM.

Affirmed.


text:
    Morton Allen SMITH, Appellant, v. Julius ROSENSTEIN, Appellee.
    Supreme Court of Florida. Special Division B.
    May 2, 1956.
   PER CURIAM.

Affirmed.


text:
    Fred G. GARNER, Gussie Sullivan, Frank W. Myers, Hugh W. Wear and P. M. Fussell, as and Constituting the Board of Public Instruction of Polk County, Florida, Appellants, v. John H. MANN, Jr., Lula R. Mann, his Wife, and Hazel F. Mann, a Widow, a Copartnership Trading and Doing Business as John H. Mann and Son, Appellees.
    Supreme Court of Florida. Division B.
    April 11, 1956.
    Rehearing Denied June 7, 1956.
   PER CURIAM.

Affirmed.


author: HAWTHORNE, Justice.

text:
    229 La. 1079
    Charles W. THOMAS v. CHECKER CAB COMPANY OF NEW ORLEANS, Inc., et al.
    No. 42268.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    Henican, James & Cleveland, M.urray F. Cleveland, New Orleans, for plaintiff-ap-pellee and relator.

      M. C. Scharff, A. J. Marciante, New Orleans, for defendants-appellants and respondents.
   HAWTHORNE, Justice.

This is a tort action in which Charles W. Thomas seeks to recover damages for personal injuries and property damage which he suffered in an intersectional automobile collision. The lower court rendered an in solido judgment in favor of Thomas against the Checker Cab Company of New Orleans, Inc., and Benjamin Van-denborre, the driver of the cab involved in this collision, but the Court of Appeal for the Parish of Orleans reversed this judgment and dismissed plaintiff’s suit. Although the Court of Appeal agreed with the trial' court’s finding of fact, it held that Thomas had been guilty of contributory negligence. See 76 So.2d 757. On application of plaintiff we granted a writ of review.

After this court had granted certiorari and while the case was pending here, Charles W. Thomas died on October 5, 1955, and his widow and three major children filed a motion to be substituted as plaintiffs-relators in these proceedings. To this motion defendants-respondents filed a motion and exceptions seeking to have the suit dismissed on the ground that it is a personal action which abated by plaintiff’s death. The widow on February 22, 1956, filed an alternative motion to be recognized as plaintiff-relator in her capacity as ad-ministratrix pro tempore of the succession of the deceased, attaching to the motion an order of the district court appointing her such administratrix. The defendants reurged the motion in abatement and exception of no cause or right of action.

Before his death Thomas had timely filed with this court an application for a writ of review. The granting of this writ had the effect of preventing the judgment of the Court of Appeal from becoming final, and consequently the district court’s judgment in favor of plaintiff awarding him damages has never been effectively set aside. See Foy v. Little, La. App., 197 So. 313. Under our jurisprudence this district court judgment is a property right which necessarily forms a part of the decedent’s estate. Castelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796; see McConnell v. Webb, 226 La. 385, 76 So.2d 405.

The motion to abate is therefore without merit, and Mrs. Lillian Wolff Thomas as administratrix pro tempore is substituted as party plaintiff and relator in this cause.

Like the Court of Appeal, we are in accord with the lower court’s finding of fact. To summarize briefly:

On Sunday, May 4, 1952, at about 2:15 in the afternoon, plaintiff was driving his Lincoln automobile on Burgundy Street in a downtown direction away from Canal Street. On reaching the intersection of Burgundy and Frenchmen streets he stopped at a stop sign, as Frenchmen is a right-of-way street. His view to his right along Frenchmen Street toward the river was obstructed by a building on the uptown corner of the intersection, so he drove into the pedestrian lane where he could see along Frenchmen Street to his right a distance of about one-third of a block, or 100 feet. Observing no traffic approaching, he proceeded slowly in second gear to cross the intersection, but as he reached a point a little over one-half of the distance across Frenchmen Street, which is 28 feet, eight inches, wide, his car was struck with great force by a 1951 Plymouth taxicab, driven by Vandenborre, which was proceeding along Frenchmen Street from the river toward the lake. The front of the taxicab hit the right side of the Lincoln between its front end and its righthand front door. The force of the impact drove the heavy Lincoln all the way across Burgundy, which is 28 feet, nine inches, wide, into a filling station on the downtown lake corner of tire intersection, where the Lincoln caught fire.

The facts in this case clearly establish that the taxicab was being operated at a high rate of speed, far in excess of the legal speed limit of 20 miles per hour. Photographs and other evidence in the record show that the front of the cab was completely crushed in; that there were skid marks made by the cab extending some 11 feet back from the point of impact, and that the heavier automobile, the Lincoln, was propelled completely across the width of Burgundy Street and severely damaged.

Both the Court of Appeal and the district court found that the driver of the cab was guilty of negligence under the facts we have set out above, and we fully agree with their conclusion. The only question for our decision is whether Thomas was guilty of contributory negligence so as to bar-recovery.

As we have already pointed out, Thomas obeyed the traffic laws by stopping at the stop sign on the corner of Burgundy and Frenchmen. Because he could not look out Frenchmen Street from this point, he drove into the pedestrian lane, and from there was able to see one-third of a block, or 100 feet, along Frenchmen Street in the direction of the river. The reason he did not catch sight of the approaching taxicab is, we are convinced, that the cab was not at this time in view, being more than 100 feet away when plaintiff entered the intersection. Under these circumstances plaintiff had the right under the law to assume that if there was any car out of his range of vision approaching Burgundy along Frenchmen, its operator would be driving at a lawful rate of speed and in a proper manner. Therefore the plaintiff acted as a reasonably careful and prudent man when he entered the intersection and proceeded across. Beard v. Morris & Co., 156 La. 798, 101 So. 147; Sherwood v. American Ry. Express Co., 158 La. 43, 103 So. 436; Sweeny v. New Orleans Public Service, Inc., La.App., 184 So. 740; Gauthier v. Fogleman, La.App., 50 So.2d 321.

Thomas was not called upon to anticipate that a vehicle approaching from his right would be operated at an unlawful rate of speed and in an improper manner. Having preempted the intersection after stopping, looking, and ascertaining that there was no apparent danger, he had the right of way over a vehicle (the taxicab) approaching from his right, even though this vehicle was being operated on a right-of-way street. Booth v. Columbia Casualty Co., 227 La. 932, 80 So.2d 869, and authorities there relied on.

On the other hand, the fact that the taxicab was being operated on a right-of-way street did not justify its driver in disregarding ordinary rules of safety, nor did it permit him to operate the vehicle in complete disregard of the rights and safety of others. As we said earlier in this opinion, the evidence in this case convinces us that the taxicab approached the intersection at a terrific rate of speed, without its driver having the vehicle under control. In so doing he was negligent, and it is our conclusion that the cab driver’s negligence was the sole and proximate cause of the accident which is the basis of this damage suit.

Consequently we think the Court of Appeal erred in holding Thomas guilty of contributory negligence.

Since the Court of Appeal reversed the judgment of the district court, there was no occasion for it to pass upon the quantum of damages. In that court plaintiff-appel-lee answered the appeal praying that the amount awarded to him in the district court be increased, and in accordance with the recent jurisprudence of this court we will remand the case to the Court of Appeal for the Parish of Orleans for consideration and determination of the quantum of damages to which plaintiff is entitled. See Jackson v. Jones, 224 La. 403, 69 So.2d 729, and authorities therein cited.

For the reasons assigned, Mrs. Lillian Wolff Thomas is substituted as party plaintiff in her capacity as administratrix pro tempore; the judgment of the district court insofar as it was in favor of plaintiff and against the defendants is affirmed; the judgment of the Court of Appeal is reversed and set aside, and this case is remanded to the Court of Appeal for the Parish of Orleans so that that court may determine the quantum of damages to which the substituted plaintiff is entitled. All costs are to be paid by the defendants.


text:
    229 La. 1088
    STATE of Louisiana v. Lucius FORSYTH.
    No. 42706.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    Chandler C. Luzenberg, Jr., Girard J. Fernandez, New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., New Orleans, for appel-lee.
   HAWTHORNE, Justice.

This is a companion case to State v. Forsyth, 229 La. 690, 86 So.2d 536; State v. Reinhardt, 229 La. 673, 86 So.2d 530; State v. Mills, 229 La. 758, 86 So.2d 895; State v. Callia, 229 La. 796, 86 So.2d 909; and State v. Crovetto, 229 La. 793, 86 So.2d 907 —all lottery cases. In the instant proceedings, Lucius Forsyth has submitted to this court without oral argument his appeal from a conviction of gambling in contravention of Article 90 of the Louisiana Criminal Code, R.S. 14:90, relying on six bills of exception in his effort to get a new trial. These bills present for our review nothing which we have not already passed on in the cases already handed down.

Bill No. 1 was reserved to the introduction in evidence during Forsyth’s trial of lottery paraphernalia seized by police officers when they arrested a man named Roland Boudreaux, and also of a payroll tax deduction memorandum for Boudreaux which was made out about two and a half months before the latter was arrested. The argument made here is that at the time the lottery paraphernalia were introduced there was no proof before the court that Bou-dreaux was Forsyth’s agent. Moreover, in objecting to the payroll tax deduction memorandum appellant contends that this document was too remote in time from the date of the crime charged to be admissible. For an answer to these objections see State v. Forsyth, supra, and State v. Mills, supra.

Bills Nos. 2, 3, and 4 were reserved when the trial judge permitted the State to file in evidence photostatic copies of Forsyth’s federal wagering tax returns, and also his quarterly reports made to the Louisiana Department of Labor, Division of Employment Security. During the trial defense counsel objected to the introduction of the wagering tax returns on the ground that they were only photostatic copies and therefore not the best evidence. It was also argued that the federal and state reports were not identified by their respective custodians, and that the reports that had been filed during 1953 were too remote in time from the date of the crime to be admissible. These objections were answered by us in State v. Forsyth, supra, and in State v. Mills, supra. In brief in this court counsel for appellant for the first time argue that these state and federal documents are privileged and confidential, and that their admission in evidence violates For-syth’s constitutional privilege against self-incrimination. For a rebuttal of these contentions see our opinion in State v. Mills, supra.

Bills Nos. 5 and 6 in this case are conceded in brief by counsel for Forsyth to contain no legal points not covered by Bills Nos. 1-4 above, and for this reason deserve no further comment on our part.

The conviction and sentence are affirmed.


author: SIMON, Justice.

text:
    229 La. 1091
    STATE of Louisiana v. Jim BRAZZEL.
    No. 42694.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    McBride & Goff, Ruston, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., Ruston, for appellee.
   SIMON, Justice.

Appellant was charged, tried and convicted with the offense of engaging in the business of selling alcoholic liquor, in violation of the Lincoln Parish Police Jury Ordinance No. 188. Following imposition of a sentence to serve 60 days in jail and pay a fine of $500 and costs, and in default of payment of fine and costs to1 serve 6 months additional in jail, all' subject to public works, appellant took this appeal, relying on three bills of exception for a reversal of his conviction.

Bill of Exception No. 1 is leveled at the action of the trial court in overruling the objection by defendant that the bill of information was not a legal and valid charge, in that it had not been endorsed and marked “filed” by the clerk of court.

The minutes of the court show that on July 27, 19SS, the defendant was duly called for arraignment on the charge contained in the bill and thereupon waived arraignment and entered a plea of “Not guilty”; and the matter was fixed for trial on September 27, 1955. Upon being called, counsel for defendant objected to going to trial, on the ground that said'bill does not constitute a valid and legal charge against defendant and hence no issue had been joined between said defendant arid the State of Louisiana. This objection was overruled by the court, which ruling forms the basis of Bill of Exception No. 1.

In his per curiam, the trial judge states that the receipt of the bill of information by the clerk of court, the assignment of a docket number thereto, the arraignment of the defendant on said bill, and its possession by the clerk until date of trial constituted effective and legal filing thereof.

LSA-R.S. 15:5 provides that a bill of information must be “filed either in open court or in the office of the clerk of the court having jurisdiction.”

In the case of State v. Lewis, 49 La.Ann. 1207, 22 So. 327, 328, we said:

“A pleading in court may be filed, in the sense of the law, without the mere indorsement, by the clerk, on it of filing. If he neglects his duty, it is none the less filed when handed to him for the purpose. Bou-vier adopts as his definition of the word ‘file’ these words: ‘A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.’ Abbott defines it: ‘To place on file, or, more generally, to deposit papers in official custody, or receive them officially for orderly, systematic safe-keeping.’ * * * ‘To file and filing mean the act of either party bringing the paper and depositing it with the officer for keeping, or the act of the officer in folding, indorsing, and putting up the paper.’ * * * ”

We have searched other authorities and find that the foregoing principle recognizing the proper filing of instruments and documents is in accord with the views expressed by courts of other jurisdictions.

In Waring v. O’Doniel, 102 Fla. 354, 135 So. 850, the Supreme Court of Florida held that a paper is “filed” when it is delivered to the proper official and received by him to be kept in his official custody. The usual file marks are but one evidence of the filing.

In the case of Buchanan v. Commercial Investment Trust, 177 Ark. 579, 7 S.W. 2d 318, the Arkansas Supreme Court held that the act of leaving or depositing the paper in a proper office constitutes a “filing” of it within a statute providing therefor; the file mark being merely evidence of filing, and not an essential element.

The case of Stanley v. Board of Appeals of Village of Piermont, 168 Misc. 797, 5 N.Y.S.2d 956, holds that the term “filing” means the delivery of a document to the proper officer to be kept on file, placing a paper in the proper official’s custody by the party charged with such duty, presenting a paper at the proper office and leaving it there, and bringing the paper and depositing it with the officer for keeping. The term imports that the paper shall remain with the clerk as a record. There can be no “filing” of a paper in a legal sense except by its delivery to an official whose duty is to file papers and who is required to keep and maintain an office or other public place for their deposit and the paper must either be delivered to such officer with the intent that the same shall be filed by him, or delivered at the place where the same should be filed. The object of “filing” is to deposit the document in a public place so that it may be seen and examined by any person interested. A document may be said to be “filed” with an officer when it is placed in his official custody and deposited in the place where his official records and papers are usually kept. A document is “filed” when delivered in a public office to the custodian of the records thereof.

We therefore conclude that the acts herein performed, as above outlined, were sufficient to constitute a filing of the bill of information against the accused in full compliance with our law.

Bill of Exception No. 2 is reserved to the ruling of the trial court admitting in evidence the jug or bottle containing the alcoholic liquor which the defendant is charged with having sold in violation of the ordinance herein.

Defendant complains that there was no testimony on the material point of identification of the jug and its contents.

In its per curiam the trial court states that all of the testimony in this proceeding was not reported by the court reporter but was limited only to that portion as requested by defendant in order to perfect his bill of exception. The court further states that one of the witnesses testified positively that the jug and contents before the court was the same jug and contents obtained from the defendant. In other words, that the jug and contents was sufficiently identified from the date of its sale to that of its presentation in evidence so as to make it admissible. The bill of exception, therefore, addressed itself to a question of fact— the identification of the jug and its contents —and the ruling of the trial judge on this question of fact will not be disturbed.

When a criminal case is tried by the judge without a jury, the judge’s conclusions on questions of fact relating to the question of guilt or innocence of the accused are final; and this court has no jurisdiction to pass on said findings of fact but is confined to questions of law. Constitutional Article 7, sec. 10(7)-LSA; State v. Gremillion, 160 La. 121, 106 So. 716; State v. Martinez, 201 La. 949, 10 So.2d 712; Town of Sulphur v. Stanley, 207 La. 1075, 22 So.2d 655; State v. Hall, 209 La. 950, 25 So.2d 908.

Bill of Exception No. 3 is reserved to the trial court’s overruling defendant’s motion to set aside the verdict of guilty, or, alternatively, for a new trial. This motion reiterates the complaints presented in Bills of Exception Nos. 1 and 2, which we have already disposed of, and, therefore, presents nothing for us to review. The granting or refusing of a new trial rests largely within the discretion of the trial court, the exercise of which will not be interfered with on review, except for abuse, which we do not find present here. LSA-R.S. 15:509(5); Constitution of 1921, Article 7, sec. 10; State v. James, 196 La. 459, 199 So. 391; State v. Saba, 203 La. 881, 14 So.2d 751; State v. Weber, 221 La. 1093, 61 So.2d 883.

Accordingly, for the reasons assigned, the sentence and verdict are affirmed.


author: JANVIER, Judge.

text:
    LATTER & BLUM, Inc., v. Angelo C. KOGOS and Samuel C. Kogos.
    No. 20646.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.

      John H. Hammel, Jr., New Orleans, for plaintiff-appellee.
    George J. Kambur, New Orleans, for defendant-appellant.
   JANVIER, Judge.

This is a suit by a corporation, duly licensed as a real estate broker, for a commission alleged to be due by defendants.

From a judgment in favor of plaintiff as prayed for defendants have appealed sus-pensively.

The District Judge rendered written reasons for the judgment and with these reasons we thoroughly agree:

“Plaintiff, as a duly licensed real estate broker -and on behalf of the defendant, as owners, leased the premises in-the City of-New Orleans, designated as municipal numbers 3601 through 3.60S South Carrollton Avenue, to a partnership doing business as Daniel Entringer & Sons, composed of Daniel, Donald D.,. and Gerald F. Entrin-ger. The lease was for primary term of 5 years at $325.00 per month, with a renewal option of 5 years vested in the lessee, and in the event of its renewal by the lessee, plaintiff was to receive a further commission on the renewed lease, to-wit, 5% on the first $2500.00 and 4% on the balance.
“During the term of the lease the partnership was converted into a corporation, the partners of the partnership becoming stockholders in the corporation, the latter taking over the lease from the partnership and assuming all obligations of the partnership.
“At the expiration of the 5-year term plaintiff submitted a renewal lease to the defendants which the latter declined, contending the lessee was a new lessee and plaintiffs were not entitled to the commission.
“The question submitted to the Court is whether or not a broker is entitled to the commission on the renewal lease where the lessee, a partnership, was converted into a corporation, with the partners of the former becoming stockholders in the latter, and the corporation assuming the lease, and the renewal lease is made by the owners with the corporation. Zuzak v. Querbes [La. App.], 193 So. 258.
“I hold that the partnership quoad the plaintiff was the same lessee with a new name and a new overcoat, and that .the defendants, as the owners and lessors under the original lease and obligated to plaintiff to pay a commission upon a renewal of the lease to the original lessee, are bound for the commission. The change of name and change of legal status did not change the identity of the lessee quoad plaintiff.”

There are two very important facts on which stress should be laid. The first is that the. corporation, which has leased the property for the second or renewal term of five years, was organized by the identical persons who composed the partnership which executed the original -lease; the former partners are the sole stockholders and officers of the new corporation. The second fact is that the corporation was organized a very few months after the commencement of the initial five-year period and, on its incorporation, was accepted by defendants as lessee in place of the original partnership. This is conceded and is evidenced by an averment in the answer of the defendants which is to the effect that “ * * * a Louisiana corporation, domiciled and doing business in the City of New Orleans, Entringer Bakeries, Inc., assumed, the original lease as lessee.”

Thus defendants admit that, for almost the entire initial five-year term of the lease, they accepted the corporation, Entringer Bakeries, Inc., as lessee in place of the named lessee which was the partnership, Daniel Entringer & Sons, Bakeries. Yet they now contend that the commission for the renewal term of the lease is not due since the original lessee is not the lessee for the said renewal term. The contention is without any semblance of merit.

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

Affirmed.


author: REGAN, Judge.

text:
    G. H. EBERT v. C. P. CHAMBERS.
    No. 20715.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    George M. Brooks, New Orleans, for plaintiff-appellant.

      Jonas C. Sporl, New Orleans, for defendant-appellant.
   REGAN, Judge.

The plaintiff, G. H. Ebert, a contractor, instituted this suit against the defendant, C. P. Chambers, the owner of the premises designated by the municipal No. 6364 Vicksburg Street, in the City of New Orleans, endeavoring to recover the sum of $618.43, representing the balance due on a written contract in the initial amount of $1,618.43, entered into between the parties for the purpose of rebuilding the roof and making other alterations to the above property.

The defendant answered admitting the execution of the contract and the unpaid balance due thereon. He then reconvened asserting that he was entitled to recover the sum of $673.50, which represented both the cost of repairing the defective roof and damage to the interior ceilings, which he insisted occurred in the course of the roofing work.

The lower court rendered judgment in favor of the plaintiff in the amount of $199.18 and dismissed the reconventional demand of the defendant. It also reserved to the defendant his right to recover from the plaintiff any loss which he may ultimately sustain as a result of liens filed against the property or claims asserted against him for materials or labor charges emanating from the contract. From this judgment both parties have appealed.

The record reveals that on June 5, 1954, the plaintiff and defendant entered into a written contract for the construction of a new roof and certain other alterations to defendant’s residence.

The work was completed on or about July 27, 1954 and shortly thereafter plaintiff requested the final payment of $618.43. Defendant refused to acquiesce in this request, insisting that a portion of the roof was defective; that the interior ceilings had been damaged and that the combined cost of correction thereof amounted to $673.50, which exceeded the balance due. Hence this litigation.

The jurisprudence is well settled to the effect that the damage for the breach of a building contract where the owner derives some benefit from the defective construction is usually the cost of repairing the defective work. Montague v. Milan, La. App., 67 So.2d 351; Leopold v. Leggio, La. App., 79 So.2d 925.

Plaintiff contends that the roof was properly installed and that no defect of any sort existed therein nor was any damage caused by his workmen to the interior ceilings in the course of the execution of the roofing contract.

In confirmation of this assertion, plaintiff offered ^n evidence the testimony of D. C. Smith, “foreman-carpenter who pushed the job”, Cecil Bennett, “painter and carpenter helper” and Louis Hartenstein, “sheet metal worker”, each of whom corroborated the plaintiff’s testimony in all of its essential aspects.

Defendant, on the other hand, insists that a portion of the roof was defectively constructed and that during the course thereof plaintiff’s employees damaged the ceilings of the residence which necessitated the expenditure of $673.50 to remedy both the defective work and the damages, as is hereinafter more fully itemized:

“$222.00 Bilbe Sheet Metal Works for removal and replacement of Tile Roofing, flashing, etc.
“$246.50 A. W. Munn, Contractor for correcting defective construction of a portion of the roof.
“$165.00 George Hatfield, contractor-carpenter for repairing damaged ceilings.
“$ 40.00 Francis Poche, Engineer, for plans and specifications to correct the improper construction of the roof.”
“$673.50

To substantiate his contention that a portion of the roof was .improperly constructed defendant offered in evidence the expert testimony of Francis Poche, a graduate engineer, who was of the opinion that a portion of the roof was improperly constructed and that he had prepared plans and specifications for the correction thereof, and that his charge therefor was $40.

Defendant then offered the testimony of Harry F. Bilbe, who removed and then replaced the tile roofing and A. W. Munn, who corrected the defective construction of the roof. They expressed the opinion that a portion of the roof was improperly constructed and related that they charged defendant, for their work, the respective sums of $222 and $246.50.

Defendant also offered the testimony of George Hatfield, a carpenter, who asserted that the cost of repairing the ceilings of the residence amounted to $165. Both defendant and his wife testified that the ceilings were in “good condition” prior to the commencement of the roofing work and that they were damaged by the plaintiff’s workmen during the course thereof.

The only questions which the pleadings and the evidence pose for our consideration are ones of fact and they are whether a portion of the roof of the residence was improperly constructed and the ceilings therein damaged and, if so, what was the cost of correction thereof?

We related her.einabove that the damage for the breach of a building contract where the ownef derives some benefit therefrom is usually the cost of repairing the defective work.

We have made a comprehensive analysis of the record and we entertain no doubt that the defendant derived substantial benefit from the roofing contract. On the other hand, we are equally convinced that a portion of the roof was improperly constructed. In this connection we have carefully read the expert testimony of Francis Poche, a graduate engineer, and it impressed us as the most credible and professional evidence in the record. After a careful evaluation of the roof he expressed the opinion that it was improperly constructed and then enumerated the reasons for having reached this conclusion. We were likewise impressed with the forthright testimony of Bilbe and Munn, roofing and wood craftsmen, who related that a portion of the roof was defective and that the cost of repairing the improper construction of the roof, as set forth in the plans and specifications of Poche, amounted to the sum of $468.50.

Hatfield, the carpenter, who repaired the interior of defendant’s residence, was unable to say who damaged the ceilings therein; and while defendant and his wife asserted that the damage was incurred as a result of plaintiff’s fault, we are more impressed, as apparently the trial judge was, with the testimony of Smith, the “foreman on the job”, who stated that the ceilings were damaged before plaintiff commenced his work and he called this to the attention of the defendant, who then said that he wanted a bid from plaintiff to repair the ceilings after the completion of the roofing contract.

The trial judge was also of the opinion that the roof was improperly constructed, but that the cost of correction thereof amounted to the sum of $419.25. He, accordingly, awarded the plaintiff a judgment for $199.18, which- was the difference between the amount sued for and the cost of correcting the defective roof. In our opinion the evidence amply proves that the cost of repairing a portion of the improperly constructed roof amounted to the sum of $508.50. Therefore, since defendant has conceded that he owes plaintiff the sum of $618.43, the plaintiff is entitled to a judgment in the amount of $109.93.

We are likewise in accord with the conclusion reached by the trial court, reserving to the defendant his' right to recover from the plaintiff any loss which he may ultimately sustain as a result of liens filed against the property or claims asserted against him for materials or labor charges emanating from the contract.

For the reasons assigned the judgment appealed from is amended by reducing the amount awarded plaintiff from $199.18 to $109.93 and, as thus amended, it is affirmed.

Amended and affirmed.


text:
    Wilson R. RAYBON et al. v. Samuel R. ESKRIDGE.
    No. 20648.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Arthur C. Reuter, New Orleans, for plaintiff-appellee.
    Carroll Montet, New Orleans, for defendant-appellant.
   REGAN, Judge.

Plaintiffs, Wilson R. Raybon, and his subrogee insurer, Motors Insurance Corporation, instituted this suit against the defendant, Samuel R. Eskridge, endeavoring to recover the sum of $331.95, representing property damage incurred to Ray-bon’s vehicle on August 16, 1952, at about 4:30 p. m., as a result of a collision in the intersection of Gentilly Highway and Americus Street.

Defendant pleaded the exception of no cause of action which was overruled, and then answered admitting the occurrence of the accident, but insisting that the proximate cause thereof was the negligence of Raybon. Defendant then reconvened and pleaded therein the contributory negligence of Raybon and asserted that he was entitled to recover the sum of $50 representing property damage incurred by his automobile.

Judgment was rendered in favor of plaintiffs as prayed for and defendant’s re-conventional demand was dismissed. Hence this appeal. Plaintiffs have answered the appeal requesting that the judgment appealed from be amended by awarding them 10% as damages for a frivolous appeal.

In order to avoid repetitious designation of parties plaintiff we shall hereinafter apply the appellation plaintiff to Raybon.

Although plaintiff, a guest passenger in his car, and defendant were the only witnesses who related the manner in which the accident occurred, the record reveals, as we have so often observed heretofore, the usual controversial facts and disputations predominant in this type of litigation.

The plaintiff testified that on the afternoon of the accident he was driving about 30 to 35 miles per hour in the left lane of the inbound roadway of Gentilly Highway, moving in the general direction from Chef Menteur towards New Orleans and when he was near the intersection of Americus Street and Gentilly Highway, he observed defendant’s automobile approaching on his left, crossing the outbound roadway at a forty-five degree angle and he anticipated that defendant would come to a stop before attempting to execute a lefthand turn across the inbound roadway of the Highway; when his vehicle was approximately 50 to 75 feet removed from the intersection, he realized that the defendant was not going to stop and it was then that he endeavored to avoid the impending collision by applying his brakes; he was unable to steer his vehicle either to his left or to his right because of traffic moving in each of these other lines.

Robert T. Neal, a guest passenger in plaintiff’s car, corroborated his testimony in all of its essential aspects.

Defendant testified that he had stopped in an oil station adjacent to the outbound roadway of Gentilly Highway, approximately 300 feet removed from the intersection of Americus Street, to procure “a soft drink”; when he left the service station he drove into the left lane of the outbound roadway and signalled for a left turn into Americus Street. He then more pertinently elucidated in .response to the following question propounded by the court:

“Q. Well how would Mr. Rabón (plaintiff) be expected to know when you left the filling station to cross over that it was your intention to make a left turn without coming to a stop and letting him know your * * * intention? A. Well, I didn’t — I never knew I was supposed to come to a stop. I was driving since 1916 and no one —if you come up to an intersection and are going to cross the highway why should you stop or anyone stop, because when you are on the center line all you have to cross is two lanes of highway.”

Plaintiff insists that the sole cause of the collision was the negligence of the defendant in executing a lefthand turn into the inbound roadway of Gentilly Highway without first stopping and ascertaining that it was safe to do so.

On the other hand, the defendant, in his endeavor to resist the implication of this assertion, maintains that the collision was not caused by his negligence, but was caused by the fault of plaintiff in failing to maintain a proper lookout and thus avoid the accident.

We have carefully analyzed the actions of the plaintiff and find that he was entirely free of negligence, therefore, the only question posed for our consideration is one of fact and that is whether the defendant’s negligence was the' proximate cause of the accident.

The trial judge resolved the answer to this question in the affirmative, as reflected in his reasons for judgment, and our careful examination of the record fails to reveal any error in his conclusion. The record reflects the very evident fact that the defendant failed to stop before executing a left turn into the heavily travelled inbound roadway of Gentilly Highway, which would have afforded him ample opportunity to observe the imminence of plaintiff’s vehicle, therefore, defendant’s negligence in this respect was the proximate cause of the accident.

The record reveals that damages in the amount of $331.95 to plaintiff’s Plymouth automobile have been adequately proven.

We are of the opinion that the appeal prosecuted by the defendant was injudicious, but we are unable to conclude from the record that it was frivolous and, therefore, plaintiff’s request for 10% penalties as damages for a frivolous appeal will not be allowed.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

JANVIER, J., absent, takes no part.


author: HAMITER, Justice.

text:
    229 La. 1098
    STATE of Louisiana ex rel. Ferd C. CLAIBORNE, District Attorney, v. Sam A. DISTEFANO, Sr., et al.
    No. 42723.
    Supreme Court of Louisiana.
    May 7, 1956.
    Edward N. Engolio, Plaquemine, Menuet & Triche, Napoleonville, by Edward N. Engolio, Plaquemine, for respondents-appellants.
    Ferd C. Claiborne, Dist. Atty., New Roads, Charles H. Dameron, Asst. Dist. Atty., Borron, Owen, Borron & Delahaye, Baton Rouge, for relator-appellee.
   HAMITER, Justice.

On October 7, 1954 the district attorney of Iberville Parish, pursuant to the provisions of LSA-R.S. 42:76 and at the formal request of 144 residents of and owners of property within the hereinafter mentioned proposed municipality, instituted this action in the name of the State of Louisiana praying for a judgment “ * * * decreeing the incorporation of the Village of North Plaquemine by proclamation of the Honorable Robert F. Kennon; Governor of the State of Louisiana, of date August 24, 1954, to be null, void and of no effect, * * '* decreeing Sam A. Distefano, Sr., Gasper Pizzolato, Sr., Tracey A. Chapman, Sr., Warren F. Roberts and Clovis Martinez to be usurpers and intruders into their respective offices, and that said named officers be ousted and excluded therefrom [and further] *, * * decreeing all proceedings, ordinances, resolutions or acts adopted or performed by said parties in their pretended official capacities to be null, void and of no effect.” (Brackets ours.)

In support of that prayer plaintiff, alleged 'that the Village of North Plaquemine in Iberville Parish, purportedly created by a proclamation under the authority of LSA-R.S. 33:52, was unduly, unlawfully and illegally incorporated in that the petition for the incorporation on which the Governor’s proclamation issued (1) was not published in full, (2) was not signed by the petitioners prior to the commencement of the purported publication, (3) was not properly posted within the area sought to be incorporated, and (4) did not correctly and adequately describe the boundaries of the proposed incorporation.

In a supplemental petition plaintiff further alleged on information and belief that the defendants, pretending to act as officials of the so-called Village of North Plaque-mine, “ * * * are now and since the filing of this suit have been illegally and without lawful authority attemping to levy and collect license taxes, and possibly other licenses and taxes, from the owners or operators of businesses conducted and carried on in the area located within the definable limits of said illegally incorporated village.” And he prayed for injunctive relief restraining the defendants from so acting.

When a rule issued in connection with the supplemental petition came on for hearing counsel for all parties stipulated in writing that “ * * * a judgment should be rendered herein ordering the issuance of a preliminary writ of injunction, to be effective during the pendency of these proceedings in the district court and appellate court, in favor of relator and against the defendants, * * * ” prohibiting them from levying and collecting any taxes and from performing other acts as purported officials of the Village of North Plaque-mine. And, pursuant to that stipulation, the court granted a preliminary injunction.

The defendants then filed an answer in which they reaffirmed the stipulation for the injunction and affirmatively averred the validity of the incorporation. Thereafter, the cause was tried on its merits.

In due course the district court rendered a judgment in plaintiff’s favor granting the relief prayed for in the original petition.

From the judgment defendants requested and obtained the instant appeal. However, we are convinced that this court is without jurisdiction of it.

Involved here is only the issue of the validity of the proclamation purportedly incorporating the Village of North Plaquemine or, in other words, of the right of the defendants to maintain and operate the delineated area as an incorporated municipality. And the jurisprudence is well settled that this court does not have appellate jurisdiction of litigation involving merely a civil or political right which is not susceptible of specific valuation. Bunol v. Bunol, 168 La. 391, 122 So. 121; Noe v. Maestri, 193 La. 382, 190 So. 588; Breland v. City of Bogalusa, 217 La. 727, 47 So. 2d 334; Mouton v. City of Lafayette, 217 La. 894, 47 So.2d 679; and Grace v. Boggs, 220 La. 22, 55 So.2d 768.

In suggesting that we are vested with jurisdiction of the appeal appellants make reference to the preliminary injunction issued pursuant to plaintiff’s supplemental petition and state: “ * * * This injunction has caused the deprivation of over $2,000.-00 worth of revenues to' the Village Treasury ; on the other hand, the failure to issue the injunction would have caused the payment of over $2,000.00 in taxes and licenses by the business establishments and property owners of North Plaquemine.”

It is to be noticed that the injunction requested by plaintiff and granted herein was merely incidental to the main demand, its sole purpose being to maintain the status quo pending a determination of the principal issue involved — the validity of the incorporation. As a general proposition an appeal on an incidental demand follows the appeal on the main demand. Article 7, Section 1, Louisiana Constitution-LSA; Succession of Solari, 218 La. 671, 50 So.2d 801; State ex rel. Sitges v. Bayou Terre Aux Boeuf Drainage District, 221 La. 985, 60 So.2d 895; and D’Asaro v. Cotonio, 223 La. 624, 66 So.2d 572.

Again, there was never any dispute in this litigation as to plaintiff's right to in-junctive relief pending the outcome of the main demand. The preliminary injunction issued, as before shown, on a stipulation or agreement of counsel.

But be that as it may, and assuming for the sake of argument that the effect of the injunction is to be considered in determining appellate jurisdiction, the record does not disclose with any degree of certainty that the value of the right in contest exceeds $2,000, the jurisdictional minimum of this court. True, evidence was introduced tending to show that the real property in the area on which taxes might be imposed had an assessed valuation of some $600,000; and that the levying of such taxes and also occupational licenses, with an expected yield of annual revenues totaling fn the neighborhood of $7,000, had been contemplated by the Board of Aldermen. However, no levies have been effected, and it would not be correct to say that the requisite jurisdictional amount can be ascertained from problematical acts of the municipality’s officials.

Furthermore, as to such contemplated revenues an observation made by this court in Mouton v. City of Lafayette, supra [217 La. 894, 47 So.2d 681], when considering the jurisdiction of an appeal from a judgment respecting annexation of real property by the defendant therein, is appropriate. We observed: “Assuming that the amount of revenues to the city can be taken as a factor in determining the value of the right in contest in this suit, we hardly believe that that could be said to be the amount in dispute because necessarily out of those revenues the City would have to provide for the new obligations incurred by reason of the annexation and for the extra expenses in furnishing the people residing in the added area the fire and police protection they would be entitled to and the various facilities which are usually afforded by a municipality to its citizens. Certainly in this case therefore there is nothing on which the value of the right involved can be definitely ascertained as it was held it has to be in the case of Breland v. City of Bogalusa, supra.

It is our opinion, therefore, that we have no authority to entertain the instant appeal.

For the reasons assigned it is ordered that this cause be transferred to the Court of Appeal, First Circuit, pursuant to the provisions of LSA-R.S. 13:4441 and 4442, the record to be filed in such court by appellants within thirty days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. Appellants shall pay the costs of the appeal to this court, and all other costs shall await final disposition of the case.


author: MOISE, Justice.

text:
    230 La. 1
    Alghia WILLIAMS v. Heredia Harrell WILLIAMS. Alghia WILLIAMS v. Yolanda WILLIAMS and Heredia Harrell Williams.
    Nos. 42497, 42499.
    Supreme Court of Louisiana.
    May 7, 1956.

      Charles Kohlmeyer, Jr., Charles E. Lugenbuhl, New Orleans, Lemle & Kelle-her, New Orleans, of counsel, for plaintiff-appellant.
    L. L. Burton, New Orleans, for defendants-appellees.
   MOISE, Justice.

Plaintiff, Alghia Williams, instituted a suit for divorce against his wife, Heredia Harrell Williams, on the ground of adultery. He filed another suit against his wife and Yolanda Williams, seeking the disavowal of the said Yolanda Williams, who was born during the alleged separation of plaintiff and his wife. From judgments dismissing both suits, which were consolidated for trial, plaintiff prosecutes this appeal.

In neither suit does the plaintiff allege the date or place of the alleged adultery or the name of the co-respondent.

Defendants deny any acts of adultery. Defendant, Heredia Harrell Williams, avers that there was cohabitation between the husband and wife until April, 1954, less than nine months before the birth of the child, Yolanda Williams, on December 30, 1954.

On the trial of the case plaintiff failed to prove any acts of adultery. He offered evidence to the effect that the defendant, Heredia Harrell Williams, was seen in the company of other men in certain night clubs and other public places, and that on one occasion she was seen entering a hotel with another man. All of this testimony was denied by the defendant, Heredia Harrell Williams.

The District Judge, who saw and heard the witnesses, concluded that' there was no proof of adultery and accordingly dismissed both suits. Our reading of the record leads us to the same conclusion.

Prior to trial, plaintiff filed a motion asking that an order be entered to require the defendants, Heredia Harrell Williams and Yolanda Williams, to submit to a physical examination involving blood typing or blood grouping. He contends that he is entitled to such an order under the provisions of LSA-Revised Statutes 13:3783, which reads:

“A. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending or in which the judgment was originally rendered may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

Plaintiff relies upon the case of Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804, in which the United States Court of Appeals for the District of Columbia (in a decision by divided court) held that an order for such a physical examination in a suit involving paternity was proper under the Federal Rules of Civil Procedure, rule 35(a), 28 U.S.C.A.

The Trial Judge denied the requested order, and we believe he was correct.

The provisions of the Louisiana Statutes Annotated-Civil Code on the subject of actions en desaveu are very rigid. Article 184 provides:

“The law considers'the husband of the mother as the father of all children conceived during the marriage.”

This presumption is conclusive, except in certain limited cases. Thus, the husband cannot disown the child even by alleging and proving his natural impotence. See, Article 185, LSA-C.C.

While an action en desaveu may be based upon adultery in certain cases, the father contesting the legitimacy must prove that “the remoteness of the husband from the wife has been such that cohabitation has been physically impossible.” See, Article 189, LSA-C.C. Where husband ánd wife live in the same city, there is not such remoteness as will justify the bringing of an action en desaveu. Feazel v. Feazel, 222 La. 113, 62 So.2d 119; Tate v. Penne, 7 Mart.,N.S., 548; Lejeune v. Lejeune, 184 La. 837, 167 So. 747.

As pointed out in Feazel v. Feazel, supra [222 La. 113, 62 So.2d 120]:

“Under Article 184 of the LSA-Civil Code, the law considers the husband of the mother as the father of all children conceived during the marriage, and it has been said in the jurisprudence of this court that the presumption created by this article is the strongest presumption known in law. In Dejol v. Johnson, 12 La.Ann. 853, it was said that this legal presumption ‘can only be rebutted in the mode and within the time prescribed by law. * * * ’ ”

It has always been the policy of the Louisiana law to protect innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid his obligations, or by third persons unscrupulously claiming the estate of the husband after his death. The restrictive provisions of the Civil Code dealing with the action en desaveu do not authorize the action where it is based solely on blood grouping tests. This is, likewise, true of an action for divorce on the ground of adultery, where it is necessary to prove the time, the place, and' the co-respondent.

For the reasons assigned, the judgments of the District Court in both of these cases are affirmed. Plaintiff to pay all costs.