text:
    229 La. 976
    Audley J. SOILEAU and Clabert Duos d/b/a Service Gin Company, v. M. A. GIBBS, W. M. Yarno and O. S. Firmin.
    No. 42252.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Earl Edwards, Marksville, for defendants-appellants.
    Fusilier & Vidrine, Ville Platte, for plaintiffs-appellees.
   HAMITER, Justice.

Primarily involved in this cause is a promissory note secured by a recorded crop pledge granted pursuant to the provisions of LSA-R.S. 9:4341.

Under date of May 10, 1951 M. A. Gibbs and the Service Gin Company (a partnership composed of A. J. Soileau and Clabert Duos) executed in favor of and gave to the Opelousas Production Credit Association the mentioned note, it reciting a' principal amount of $4,500, stipulating interest of 5%% per annum from date and 10% attorney’s fees, and being payable on demand after September 16, 1951. As security for the payment of the note, which evidenced advances made to him for 1951 farming operations, Gibbs also executed a written pledge of his crop for that year, the instrument having been duly recorded in the Parish of Evangeline where he resided.

During the months of September and October, 1951 Gibbs sold some of the cotton which he had pledged, William Yarno having bought nine bales for the price of $1,-. 217.13 and O. S. Firmin sixteen bales at $2,533.30. These persons, cotton buyers and residents of Avoyelles Parish, purchased separately from and independently of each other and had no actual knowledge of the crop pledge which Gibbs had granted. The commission earned by them from the transactions was $1 per bale of cotton.

On November 9, 1951, subsequent to the sales of the pledged cotton by Gibbs to Yarno and Firmin, the partnership of A. J. Soileau and Clabert Duos (doing business as Service Gin Company and co-maker of the promissory note) acquired the note from the Opelousas Production Credit Association by paying the balance then due thereon. The payee’s endorsement recited: “Pay to the order of The Service Gin Co. of Ville Platte, without recourse to this Association.”

Eighteen days later such partnership and the individual members thereof instituted this suit in which they seek a solidary judgment against Gibbs, Yarno and Firmin (the last two being the purchasers of the pledged cotton from Gibbs) for the balance due on the acquired note. To the petitions Yarno and Firmin first filed numerous exceptions, all of which were overruled. Thereafter they answered. Gibbs did not answer, and a preliminary default was entered against him.

The cause, as between the plaintiffs and the defendants Yarno and Firmin, was tried on its merits by means of a stipulation of counsel, it disclosing the facts hereinabove recited. And shortly after the trial such defendants filed exceptions of no right and no cause of action.

In due course the district court rendered judgment “ * * * in favor of Service Gin Company, a partnership of Audley J. Soileau and Clabert Duos, and against the defendants, O. S. Firmin, W. M. Yarno, and M. A. Gibbs, jointly and in solido, for the full sum of Two Thousand One Hundred and Four and 47/100 ($2,-104.47) Dollars, together with five (5%) per cent per annum interest, from October 1, 1951, until paid, plus ten (10%) per cent attorney’s fees on the whole amount due, and for all costs of this suit.” Firmin and Yarno are appealing.

Appellants, purchasers of the pledged cotton, were decreed solidarily liable with the pledgor Gibbs on the theory that all were joint tort-feasors, the judge (as-his written reasons disclose) having applied the doctrine announced in Alexandria Production Credit Association v. Horn, 199 So. 430, decided by the Court of Appeal of the Second Circuit and in which this court denied a writ of certiorari.

In the Horn case it was held that inasmuch as the law of pledge grants to the pledgee of an agricultural crop Active possession thereof, Act 66 of 1874 and Act 93 of 1922 — now LSA-R.S. 9 :4341, the pledgor who disposes of any part of the pledged crop to the detriment of the pledgee commits a tort against the latter (evidently this holding also took into consideration LSA-Civil Code Article 3173 reciting that “The debtor who takes away the pledge without the creditor’s consent, commits a sort of theft.”) The Court of Appeal therein further reasoned and held that since a purchaser of the pledged crop is charged with constructive knowledge of the recorded pledge he likewise is an offender of the Active possession of the pledgee, commits a tort, and becomes a joint tort-feasor with the pledgor.

Referring to the Horn case counsel for appellants, in his brief, states: “ * * * we have no quarrel with that decision; we earnestly submit that its principles and law cannot be applied in the case before the Court.

“If the Opelousas Production Credit Association had sued the defendants in this case, separately and individually, the above decision might be applicable.

******

“In the case at bar, even if we use the reasoning of the above case, the tort or wrong was committed by the defendants against the Opelousas Production Credit Association and not against plaintiffs herein. It is to be noted that all the cotton purchased by defendants was purchased when the Opelousas Production Credit Association held the note and crop lien of M. A. Gibbs; it was over one month after the last purchase by either of the defendants that the plaintiffs purchased from the Production Credit Association the note of M. A. Gibbs. * * * ”

And counsel concludes that these plaintiffs “ * * * cannot maintain this action without an express subrogation from the Opelousas Production Credit Association which would give them that right, and no such subrogation is in the record.”

This conclusion appears to be sound, and therefore our opinion is that appellants’ exception of no right of action should be-sustained.

Analogous here are numerous cases decided by this court, involving sales made with broad subrogation rights granted to the vendees, wherein we held that rights of action in tort for damages occurring prior to the sales are personal to the vendors and do not pass to the purchasers without express conventional subrogations. Among such cases are Madison v. Zabriskie, 11 La.Ann. 247, Bradford v. Damare, 46 La. 1530, 16 So. 487, and Gumbel v. New Orleans Terminal Company, 197 La. 439, 1 So.2d 686.

In support of their right to recover herein plaintiffs rely on LSA-Civil Code Article 2161 reciting: “Subrogation takes place of right:

******
“3. For the beneAt of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.” It is contended that as comakers of the note with Gibbs they had an interest in discharging the obligation and that, on paying the debt, they became legally subrogated to ,all of the rights of the payee. And in support of the contention they cite and quote from Cook v. Crow, La.App., 194 So. 455.

The cited case is not authority for a holding that a payee’s personal right of action against a third person not a party to a note is acquired by the purchaser of the note. Therein the court merely held that the purchasers of the involved mortgage notes, who had been accommodation endorsers thereon, were entitled to obtain a judgment against the maker and to have recognized the mortgage given as security.

These appellants in no manner subscribed to the note and pledge on which this suit is predicated. Hence, plaintiffs were not bound with or for them for the payment of the debt as contemplated by LSA-Civil Code Article 2161(3), above quoted. Neither do appellants now have possession of the pledged cotton which they purchased ' from Gibbs. They are sought to be held

liable in an action (whether it be considered one sounding in tort as was held in the Horn case or as having arisen by operation of law because of the provisions of the crop pledge statute) which was a personal right of the payee of the note — the holder thereof at the time the purchases were made. And being of such nature the right of action could not and did not pass to plaintiffs in the absence of a special subrogation to that effect.

For the reasons assigned the judgment appealed from is reversed and set aside, the exception of no right of action is sustained, and plaintiffs’ suit as against these appellants is dismissed. Appellees shall pay all costs.


source: Caselaw Access Project

author: FOURNET, Chief Justice.' McCALEB, Justice.

license: Public Domain

text:
    229 La. 984
    STATE of Louisiana v. Louis CHINN.
    No. 42430.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    On Rehearing March 26, 1956.

      Daniel P. Kimball, T. C. Strickland, Jr., Port Allen, Ralph L. Roy, Baton Rouge, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Ferd C. Claiborne, Dist. Atty., New Roads, Charles H. Dam-eron, Asst. Dist. Atty., Baton Rouge, for appellee.
   FOURNET, Chief Justice.'

The defendant, Louis Chinn, having been convicted on an indictment charging him with the murder of Dominick Boeta and sentenced to death in the electric chair, prosecutes this appeal, relying for the reversal thereof on a number of errors alleged to have been committed during the trial, ten of which have been perfected in bills of exceptions. In order that these various bills may be properly understood, we deem it necessary to go in some detail into the facts of the case as disclosed by the record before us.

It appears that the accused, who is an average uneducated Negro of 25 or 26, had been, for many years, doing odd jobs around a combination ice house, fruit exchange, and produce loading platform in Baton Rouge, including part time work as a helper on the truck Dominick Boeta operated in peddling fruit and vegetables through Baton Rouge and on plantations across the river from that city. On the morning of Friday, April 30, 1954, he had been working around the exchange for several hours when Boeta, going there for supplies, asked Chinn to accompany him on his rounds, which Chinn did, driving the truck part of the time and assisting in peddling.

The trip through the south part of Baton Rouge proved to be unprofitable and Boeta returned to the exchange to obtain garbage and proceeded across the river to feed hogs he kept there, stopping aloftg the way to peddle. After making the rounds through the Negro quarters of Catherine, Allendale, and Smithfield plantations, he arrived at the place where the hogs were kept around 7:00 p. m. On leaving he noticed the tail light was out and, at his instruction, this was fixed by Chinn. However, the truck seemed to be giving other trouble and a stop was made at a service station around 8:30 p. m., where work was done that later proved to be inadequate. Returning through Westover plantation, and when a point near Mullato Bend along the river road had been reached around 11:00 p. m., all of the truck lights went out and Boeta got out of the truck to investigate. While standing at the back of the truck Chinn hit him in the head with an iron hammer used in opening crates, and he fell to the ground. While lying there, Chinn hit him several additional times, and, as he continued to groan and move about, twisted his (Chinn’s) belt around Boeta’s neck. He then put Boeta in the truck and drove with him back through Allendale. He threw the hammer away in a cane field enroute, some seven miles away from the place where he hit Boeta, and finally left the body, still breathing, in the weeds by the side of the road at the foot of the levee near the bridge. He removed from Boeta’s pocket some $10 in paper money, and from a purse attached to a money belt around his waist approximately three dollars in change. Driving across the bridge on the return to- Baton Rouge, he threw the purse (in which was contained papers belonging to Boeta) into the river. He abandoned the truck near the ship docks in Baton Rouge, threw the keys away to prevent pursuit, walked to the bus station, and caught a bus for New Orleans around 1:00 in the morning. He was picked up in New Orleans around 7:00 a. m., Sunday, May 2, 1954, in front of the home of a man who employed him occasionally and who had been alerted by Baton Rouge police (who had discovered the abandoned, blood-soaked truck, and had no way of knowing the crime had been committed in West Baton Rouge Parish) to be on the lookout for him.

After his arrest Chinn was taken to the homicide office of the New Orleans Police Department and there made a written confession in the presence of two New Orleans officers and three from Baton Rouge, who had come down to pick him up. Learning from the confession where Boeta’s body had been left, the officials of West Baton Rouge Parish were contacted and the officers from Baton Rouge turned Chinn over to officials from that parish at Gonzales. These officers returned Chinn to Baton Rouge via Donaldsonville for his protection.

Later that day, in the Baton Rouge jail, Chinn again confessed to the crime, the confession being preserved on tape recording. Two days later, on May 4, while being questioned by the district attorney and sheriff of West Baton Rouge Parish, as well as other officials, Chinn requested that he be left alone with two of these officials and to them admitted he had not told the whole truth at the time of his two previous confessions since the beating of Boeta had occurred on Westover plantation, not Al-lendale, and he had used as the weapon an iron crate hammer, not a piece of iron pipe used as a car jack handle, as he had first said. When the hammer could not be found at the point indicated by Chinn, he was again questioned the following morning, and gave more explicit instructions that led to its discovery. Chinn then sent for the district attorney of West Baton Rouge Parish and, at the request of Chinn, a third and more complete confession was tape-recorded May 7, 1954.

The accused was charged by indictment with the murder of Boeta and arraigned •September 14, 4954. On that same day counsel appointed by the court to represent him entered a plea of “not guilty” in his behalf. On the next day, stating they had reasonable grounds to believe the accused "is insane or mentally defective to the ex tent that he is unable to understand the proceedings against him or to assist in his defense/’ requested a hearing to determine the defendant’s mental condition, and that the court, after such hearing, appoint “qualified experts to examine the defendant, and inquire into his present mental condition and report their findings” to the court. In accordance with this request, which was granted, counsel were permitted to file a written plea of “present insanity,” and after the preliminary hearing, the court, by order of September 17, 1954, appointed a lunacy commission composed of Dr. E. M. Robards, superintendent of the East Louisiana State Hospital for the mentally ill; Dr. L. F. Magruder, a well-known psychiatrist of Baton Rouge; and Dr. Paul B. Landry, Sr., coroner of West Baton Rouge Parish, to examine the “present mental condition and sanity of the accused.” And although this commission returned to the court a unanimous opinion to the effect that Chinn’s mentality was of such a low grade it interfered “with his ability to choose between right and wrong, and as such should be considered legally insane,” the court, after a full hearing on October 21, 1954, during which all three experts, lay witnesses, and the accused were examined, denied the plea of present insanity and ordered the defendant to stand trial. (Emphasis supplied.)

This .ruling forms the basis for the first bill reserved, and, because of its importance, and particularly in view of the report of the commission, we have given it most careful consideration, reviewing and analyzing all of the testimony at the hearing, as well as the 24-page written opinion of the trial judge in which he painstakingly, fairly, and patiently gives us his appreciation of the evidence on the plea and the controlling law.

At the hearing Dr. Robard confirmed the unanimous finding of the lunacy commission appointed by the court that the accused was not suffering from any psychosis, i. e., mental disease or serious mental derangement. However, based on tests made by other psychologists at the state hospital, he classified the accused as possessed of a mentality between an imbecile and a moron. This classification results solely from the fact that Chinn had a low intelligence quotient of between 50 and 60, it being the doctor’s conclusion that although he knew the difference between right and wrong, he could not, because of this low i. q., choose between the two. The substance of his testimony was summarized by state counsel in the following question: “ * * * your testimony simply boils down to the fact this man has a low grade mentality. This man you . say knows the difference between right and wrong, but in your opinion cannot choose between the two. Furthermore, you stated * * * this man knew what happened that night in question, and you feel he could tell his counsel about it, and you feel he knew this was a murder charge against him. * * * Despite all that, you say you think this man is legally insane and he should be committed. That is what you said?” To this Dr. Robard replied: “That is what I said.” It is obvious, therefore, that according to this expert the accused knew what had taken place, knew he was charged with murder, could understand the nature of the proceedings against him, and could assist counsel within the limits of his intelligence in the preparation of his defense.

Dr. 'Magruder, a physician specializing in psychiatry in Baton Rouge, placed Chinn in a borderline group between an imbecile and a low grade moron, having the mentality of a child between 8 and 9. In essence he agreed with the conclusion reached by Dr. Robard, that is, that Chinn understood the nature of the proceedings and could cooperate with counsel in the preparation of his defense within the limits of his intelligence.

The third member of the commission, who had been coroner of West Baton Rouge Parish for some 25 years, stated he found the accused to be an average “darky with no education.” He said he signed the report in deference to the recommendations of the other two members, who were considered experts in psychiatry while his experience had been practical only, but had, at the time, disagreed with their con-elusion the accused, knowing the difference between right and wrong, could not choose between the two. It was Dr. Landry’s opinion that it was difficult to tell whether Chinn could not choose between the two because of a low mentality, or merely because he did not want to. He stated it was practically impossible to determine in such a case whether the subject was telling the truth or faking. In this respect he is corroborated by the other two experts. Dr. Magruder stated unequivocally he was unable to say whether Chinn was faking.

From the foregoing it is clear that the accused was not suffering from any psychosis or other mental deterioration or disease, and that the conclusion of the experts was based solely upon his low intelligence quotient, although they were unanimous in their conclusion it was almost impossible to determine whether he did in fact possess such a low mentality or was faking.

We are mindful of the fact that it is possible for a person to have such a feeble mentality as to fee unable to distinguish between right and wrong, to understand the proceedings against him, or to assist in his defense. However, according to the universally accepted jurisprudence, mere weakness of mentality or sub-normal intelligence does not, of itself, constitute legal insanity. State v. Brodes, 160 La. 340, 107 So. 131; State v. Tapie, 173 La. 780, 138 So. 665; Commonwealth v. Stewart, 255 Mass. 9, 151 N.E. 74, 44 A.L.R. 584; 14 R.C.L. 603; 22 C.J.S., Criminal Law, § 58, p. 121. The test for determining the present insanity of an accused, as set out in these authorities, is codified and set out precisely in our Revised Statutes thusly: “If * * * the court has reasonable ground to believe that the defendant * * is insane or mentally defective to the extent that the defendant is unable to understand the proceedings against him or to assist in his defeme, the court shall immediately fix a time for a hearing to determine the defendant’s mental condition. The court may appoint two disinterested physicians to examine the defendant with regard to his present mental condition and to testify at the hearing. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party. If the 'court, after the hearing, decides that the defendant is able to understand the proceedings and to assist in his defense, it shall proceed with the trial.” LSA-R.S. 15:267. See, State v. Estes, 212 La. 694, 33 So.2d 199; State v. Layton, 217 La. 57, 46 So.2d 37; State v. Swails, 223 La. 751, 66 So.2d 796; and State v. Riviere, 225 La. 114, 72 So.2d 316, 317. (Emphasis has been added.)

We think the following observation in the very recent decision of this court in the Riviere case is most appropriate here: “The law presumes that every man is sane. State v. Seminary, 165 La. 67, 115 So. 370, State v. Toon, 172 La. 631, 135 So. 7. And to warrant the sustaining of a plea of present insanity, thereby preventing trial of a criminal action, it must appear by a preponderance of evidence that the accused is so mentally deficient that he lacks capacity to understand the nature and object of the proceedings against him and to assist in the conducting of his defense in a rational manner.”

We are impressed that the confessions and testimony,of the accused disclose, to' say the least, an average intelligence of people of this class. He was able to remember and to relate in detail, with particularity and accuracy, everything that transpired from the time he went with Boeta around 10:00 a. m. Friday morning, April 30, 1954, up to and including his arrest around 7:00 a. m. Sunday morning, May 2, even detailing the names of the streets traveled and the right and left turns made, the names of the plantations visited and the routes taken off the main roads, as well as the details of the crime itself. It is interesting to note that when arrested in New Orleans he denied any knowledge of the crime, and even claimed it had been committed by another Negro, known to him. It was not until he was confronted with the fact the officers knew and could show he had been with Boeta all during the day, that Boeta had disappeared and his blood soaked truck found in Baton Rouge, that he told the truth, his motive then being the thought that if Boeta was still alive he could be given medical assistance. He knew Boeta had been alive and breathing when left by the road side, and he felt that by telling where his body could be found and he might be saved, this would also "help me out.”

In addition to prompt and responsive answers, and a straight-forward, rational, and logical sequence of narrative, the accused gave as the motive for his act the fact that he needed money for his wife, who had threatened to have him put in jail for nonsupport. The fact that he knew he had done wrong and realized the enormity of his offense was made very obvious to us as we listened to the confessions that were tape-recorded, for he broke down completely and sobbed in a voice filled with emotion when he reached the point in the story where he told of how he hit and choked the victim, acknowledging Boeta had been most kind to him during the several years he had worked for him intermittently.

Furthermore, when placed on the witness stand in an effort to show he told the district attorney during the Baton Rouge confessions he had been struck at the time of his arrest, his comment when it was intimated by questions put to him- that the tape recording did not reflect this speaks eloquently of his knowledge of the proceedings and his ability to assist counsel in his defense, for he said, “Some of it could have been cut off and some not. They take what they want to hear, and some of it they don’t take.”

In addition to the testimony of these experts and the confessions as well as testimony of the accused, the state introduced a number of lay witnesses who had known the accused for some time (years in many instances) and had had ample opportunity to observe him, including those in charge of him during his incarceration in the Baton Rouge jail. All testified they observed nothing abnormal or in any way different about him and felt he was presently sane. The trial judge who examined and observed him was of the same opinion.

From our appreciation of the entire record we have no hesitancy in concluding the accused was able to understand the proceedings against him and to properly assist counsel in his defense and that the trial judge correctly ordered him to stand trial.

Following the dismissal of the plea of present insanity, the accused was re-arraigned and pleaded insanity and the court entered a plea of “not guilty” in his behalf when counsel refused to so plead. When the court refused to permit him to have a trial on the plea of insanity independently of the plea of not guilty, he reserved the second bill, it being counsels’ contention that he was entitled to .go to trial on this plea alone inasmuch as one of the four pleas that may be made to an indictment is “insanity,” under LSA-R.S. 15:261.

There is no merit to this bill. In deciding this identical contention adversely to argument of counsel in State v. Dowdy, 217 La. 773, 47 So.2d 496, 502, we commented: “The ruling of the trial judge was entirely proper for a plea of insanity at the time of the commission of the crime involves a fact affecting the guilt or the innocence of the accused and necessarily it must be tried on the merits and submitted to the jury the same as all other facts presented during the trial of the case. See State v. Eisenhardt, 185 La. 308, 345, 349, 169 So. 417; State v. Sample, 203 La. 841, 845, 14 So.2d 678.”

The next two bills were reserved in connection with the admission of the three confessions — Bill of Exceptions No. 3 when the New Orleans confession of May 2 was admitted and the other when the two tape-recorded confessions made in Baton Rouge on May 2 and 7 were admitted. They were discussed together by defense counsel, and will be so considered by us.,

In disposing of the' third bill, the trial judge, and we think properly so, concluded “the evidence shows that no force or violence was used on the accused and that the accused was not threatened nor made any promises whatsoever to induce him to confess.” He states that although the accused himself testified that upon the occasion of his arrest “Patrolman Delpuget struck him once in the stomach, which was denied not only by Patrolman Delpuget but by the officers present,” when called to- the stand the accused “admitted that from the time he arrived at the Criminal Court Building until the time of his confession no force or threats were used on him. All of the officers present at the time of the making of this confession testified that the statement made by the accused was free and voluntary.”

Counsel, in reliance upon our holding in State v. Honeycutt, 216 La. 610, 44 So.2d 313, claims that inasmuch as the state failed to produce and call to the stand certain persons who happened to be at or near the scene of the arrest, either in laying the foundation for the admission of the confession or in rebuttal after accused testified he had been mistreated at that time, it had not carried the burden of proving the confession was free and voluntary. In other words, counsel argue that for the state to prove a confession is free and voluntary, it must produce all persons that may have been present on any occasion the accused happens to testify he was mistreated.

A perusal of the Honeycutt case shows it is not authority for that proposition. Although the state there, in laying the foundation for the introduction of the confession, placed on the stand all those present when it was written around 7:00 a. m., one of whom stated the accused was not mistreated the previous night after arrested and taken to headquarters, it failed to recall a single one of these officers to either corroborate the statement of the officer who testified the accused had not been mistreated the previous night, or to rebut the testimony of the accused that his real confession was made that night after he had been subject to severe physical violence and only reduced to writing the following morning. In the instant case witnesses were called in rebuttal. Furthermore, the accused did not claim he confessed when arrested (at which time he was allegedly mistreated), as in the Honeycutt case. On the contrary, he vehemently denied any knowledge of the disappearance of Boeta, asserting he had been alive when he left him. It was only after he was taken to headquarters and questioned in an effort to ascertain where Boeta might be so that medical assistance could be administered if needed, and after confronted with the array of evidence gathered by the Baton Rouge officers showing that he and he alone had been with Boeta all during Friday and into that night, that he broke down and sobbed his story, stating he knew Boeta was still breathing when he was left by the road side, and he felt if Boeta could be found and was still alive and could be helped, it might help him (Chinn).

For us to hold as contended by counsel for the defendant, all one charged with crime would have to do to prevent the introduction of a confession, no matter how freely and voluntarily given, would be to make some showing there had been other persons present on the occasion of 'a purported mistreatment, whether such persons were known to the state or not.

Counsels’ argument in support of the contention that the tape-recorded confessions of May 2 and 7 should not have been admitted is three-fold: (1) That inducements and promises were used: and that (2) pressure, and (3) coercion were exerted.

There is not a scintilla of evidence to support these contentions. We are in complete agreement with the trial judge who, in court, stated he was convinced the recordings show the full, true, and exact replica of the statements as given in Baton Rouge and that “at the time * * * the accused was free of any constraint, threats, intimidations or promises of any kind whatsoever.”

During the course of the trial, while the state was presenting evidence in the form of a cap allegedly worn by Boeta at the time of the crime, there was an outcry by his widow. The jury was immediately retired, Mrs. Boeta removed from the courtroom, and the jury, upon recall, instructed to disregard this emotional demonstration and to rely solely upon the facts developed during the trial and the law given in the official charge in determining the guilt or innocence of the accused. The judge’s refusal to grant counsels’ motion for a mistrial, based on this outburst, forms the basis of the fifth bill, it being their contention this outcry, as well as Mrs. Boeta’s continued presence in the building, although outside the courtroom, had the effect of swaying and prejudicing the jurors in derogation of defendant’s right to a fair and impartial trial.

This exact contention has been decided adversely in a number of cases and is, therefore, untenable, particularly in view of the judge’s prompt action in retiring the jury with instructions to disregard the incident. See, State v. Renard, 50 La.Ann. 662, 23 So. 894; State v. Spillers, 105 La. 163, 29 So. 480; State v. Wimby, 119 La. 139, 43 So. 984, 12 L.R.A.,N.S., 98; and State v. Williamson, 145 La. 9, 81 So. 737.

The next three bills are interrelated and will be discussed together. Counsel reserved Bill of Exceptions No. 6 when the court allegedly failed to comply with its mandatory duty to examine, during the trial, the experts appointed under the order of September 17, 1954, and, instead, “ordered” counsel to examine them. Bill No. 7 was reserved when the trial judge allowed Dr. Landry, over defendant’s objection, to testify contrary to the finding of the lunacy commission report of October 16, 1954, to which he had originally subscribed, and to explain his reason for signing it. The eighth bill was reserved when the judge refused to grant a continuance, based on the ground accused was surprised by such testimony.

While under the express provisions of LSA-R.S. 15:268, the court “Whenever * * * the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause * * * may appoint one or more disinterested physicians * * * to examine the defendant”, and after such appointment is made “The physicians appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and the defendant”, when insanity was made a defense in this case, the court was never requested to, nor did it in fact, in the exercise of the discretion vested in it by this section, appoint any physicians to examine defendant to determine “the existence of insanity or mental defect * * * at the time of the alleged commission of the offense.” Consequently, the provisions of LSA-R.S. 15:268, making it the mandatory duty of the judge to examine such experts, once appointed, has no application here. The commission appointed by the judge on September 17, 1954, was for the sole and specific purpose of examining and reporting "on his present mental condition and sanity” to determine whether, as contended by counsel, he was not "of sound mind and understanding at the present time.” (Emphasis supplied.)

Counsels’ argument that they did not need the testimony of these experts since the report of the commission was admissible and prima facie correct, and that the judge erred in “ordering” them to call and examine these experts, is untenable. In the first place, the judge did not compel counsel to call and examine these experts. Instead he ordered counsel, who had had the experts subpoenaed, to examine them but only to the extent that counsel deemed it “advisable and necessary to protect the interests of the accused.” In the next place, counsel err in contending the report was prima facie evidence of the insanity of the accused at the time of the commission of the offense. As heretofore pointed out, these experts only inquired into and reported on the present insanity of the accused,, an aspect of the case that was not before the jury since it could only be determined by the trial judge. Finally, counsel overlook the fact that having urged insanity at the time of the commission of the offense as a defense, they must bear the burden of establishing this fact by a preponderance of the evidence for the benefit of the jury inasmuch as the law presumes that a person is sane. State v. Scott, 49 La.Ann. 253, 21 So.2d 271, 36 L.R.A. 721; State v. Surrency, 148 La. 983, 88 So. 240; State v. Seminary, 165 La. 67, 115 So. 370; State v. Toon, 172 La. 631, 135 So. 7; and State v. Patterson, 176 La. 440, 146 So. 17.

In his per curiams to these bills the judge correctly states that once Dr. Landry was called as a witness on behalf of the accused, he had a right to explain his action in signing the lunacy commission report, and that his credibility and the weight to be given this testimony was a matter for the determination of the jury, as all other facts. He points out, additionally, that inasmuch as this testimony was substantially in accordance with the same doctor’s testimony at the time of the hearing before him to determine the present insanity of the accused, counsel could not have been taken by surprise and were not, therefore, entitled to a continuance. Clearly, therefore, there is no merit to any of these three bills.

Bill of Exceptions No. 9, reserved to the action of the trial judge in permitting lay witnesses to testify on the issue of the sanity of the accused at the time of the commission of the offense, is without merit also. As pointed out in our recent decision in State v. Swails, 226 La. 441, 76 So.2d 523, 528, “It is well settled in this State, and by the overwhelming jurisprudence of this country, that a non-expert witness, basing his testimony on facts and circumstances known to him, may be permitted to give opinion testimony touching upon the sanity or insanity of a person whose mental condition is at issue, provided the witnesses be shown to have had ample opportunity to observe the speech, manner, habits and conduct of such person.” See, also, the authorities therein cited. The trial judge points out that the proper foundation was laid in the instance of all of the lay witnesses called to the stand to testify, and the note of evidence attached to this bill amply sustains this conclusion.

The final bill was reserved when motion for a new trial, based on the errors just disposed of, was denied, and, therefore, presents nothing for our review.

For the reasons assigned, the conviction and sentence are affirmed.

On Rehearing.

McCALEB, Justice.

Bill of Exceptions No. 6 was taken to the judge’s refusal to comply with the provisions of R.S. 15:268, which requires him to summon the physicians composing the lunacy commission to testify and examine them at the trial whenever the existence of insanity on the part of an accused at the time of the commission of the offense has become an issue and a commission has been appointed to examine him.

Following his indictment for murder, appellant applied for the appointment of a commission to inquire into his present mental condition. This request was granted and, on September 17, 1954, an order issued appointing a commission to investigate not only his sanity at that time but also to report on his mental condition at the time of the commission of the offense. In the latter respect, the order was broader than appellant’s application and, since it had been misplaced in the voluminous record presented on this appeal, we naturally con-eluded that it conformed to "appellant’s request. Hence, our previous holding that Bill No. 6 was without merit, because the lunacy commission was appointed only to inquire into appellant’s present sanity, was founded on that assumption. The true facts being directed to our attention by appellant in his application for a rehearing, we agreed to reconsider the bill.

The district attorney contends initially on this rehearing that the order of the judge of September 17, 1954 was improvident and is a nullity, insofar as it directed the experts to investigate appellant’s mental condition at the time of the commission of the crime, for the reason that his sanity had not become an issue in the cause at that time.

Since appellant did not plead insanity at the time of the commission of the offense in his application for the appointment of the lunacy commission, it was not an issue in the case at that time. Therefore, although the judge was well within his rights in appointing a lunacy commission, he exceeded his authority in directing its members to report on appellant’s mental condition at the time of the commission of the offense as R.S. 15:268 requires that the existence of insanity at that time be at issue when the appointment of a lunacy commission is requested. State v. Eisenhardt, 185 La. 308, 169 So. 417 and State v. Gunter, 208 La. 694, 23 So.2d 305. However, as the State did not object to the judge’s order or the commission’s report conformable therewith, either at the sanity hearing or at the trial, it would seem that it has waived its right to contest it at this late date and, since insanity, at the time of the commission of the offense was subsequently pleaded and became the main defense at the trial, it effected a cure of any irregularity theretofore existing in the order. Obviously, it would have been a vain and useless gesture for the judge to reappoint the commission and order it to make another report after insanity was pleaded as the defense.

R.S. 15:268 expressly provides that “The physicians appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and the defendant.” Hence, the judge erred in refusing to comply with appellant’s request that he examine the experts appointed under the order of September 17, 1954. State v. Sauls, 226 La. 694, 77 So. 2d 8.

Forasmuch as error was committed, it remains only to ascertain whether appellant was prejudiced or sustained injury as a result thereof. Article 557 of the Code of. Criminal Procedure, R.S. 15:557, provides, in substance, that no judgment of conviction sh'all be set aside in any criminal case because of misdirection of the jury or the improper admission or rejection of evidence “ * * * or as to error of any matter of pleading or procedure * * * ” unless it appears to the court, after an examination of the entire record, that the asserted error has probably resulted in a miscarriage of justice, " * * * is prejudicial to the substantial rights of the accused, or constitutes a substantial violation oí a constitutional statutory right.” (Italics ours.)

Since the report of the lunacy commission supported appellant’s defense, he had the legal right to have the jury hear the testimony of the doctors and their detailed explanations of the reasons for their opinions that he was insane at the time of the commission of the offense. This was a substantial right and, if the jury had not had the benefit of the doctors’ testimony, a new trial would unquestionably have to he granted. But the jury did have the benefit of the experts’ findings and their testimony, despite the judge’s failure to follow the procedural directions of R.S. IS :268. In view of this, it is difficult to perceive that appellant suffered injury or that his substantial rights were prejudiced by the erroneous ruling.

Nevertheless, counsel earnestly contend that substantial prejudice has ensued by reason of the ruling as they were “forced” to place the doctors on the stand as appellant’s witnesses and that this deprived him of the additional weight which the jury would have necessarily attached to the testimony of the experts had they been properly called and examined by the judge in conformity with the statute.

We do not think it follows that prejudice resulted because the experts were presented as appellant’s witnesses rather than as those of the Court. The fact is that they were fully examined by the State and the defense and that they testified at length in favor of appellant (save in one instance hereinafter noted). Since the jury was aware that the experts were appointed by and had made their examinations under orders of the Court, it is inconceivable to us that it made any material difference to it whether they were called and examined by the judge or by appellant. The important thing was that the jury had full opportunity of determining the issue of insanity after hearing and considering the expert as well as the lay testimony.

Nor do we think that it mattered that the Coroner, Dr. Paul B. Landry, gave testimony repudiating to some extent the written report submitted by the commission (which he signed) and expressed a view partially contrary to that of the two other members of the commission, who were psychiatrists. Defense counsel were apprised of Dr. Landry’s views at the time they put him on the stand for, as pointed out in our original opinion, he had previously testified at the time of the present sanity hearing that he had signed the report in deference to the recommendation of the other two members of the commission, who were experts in psychiatry, although he disagreed with their conclusion that appellant, knowing the difference between right and wrong, could not choose between the two. At any rate, it is certain that Dr. Landry would have testified exactly as he did, whether he had been called and examined by the judge or by appellant.

We have also given consideration as to whether the ruling of the judge may have possibly injured appellant by depriving him of his right to cross-examine the experts. But, after a perusal of the record, we are convinced that this right was not impaired in the least. Two of the doctors testified-favorably to appellant, despite a searching cross-examination by the district attorney. Hence, there was no reason for defense counsel to cross-examine them. And counsel were not curtailed in any manner in their examination of the Coroner, Dr. Landry, the record showing that he was rigorously cross-examined by them as a hostile witness, even though the defense had not been taken by surprise.

For the foregoing reasons, our original decree is reinstated as the final judgment of this Court.

      . Present at the time were Desk Sgt. James Ernest LaVergne (who typed the confession as it was made) and homicide officer John Delpuget (who made the arrest), members of the New Orleans police force; Lt. PI. G. Leach and deputies Earl L. Guss and Tom W. Henderson from the office of the Sheriff of East Baton Rouge Parish.

      . Present at the time was the district attorney of West Baton Rouge Parish, his secretary, the sheriff and a deputy from that parish, and the operator of the recording machine, who was a deputy sheriff of East Baton Rouge parish.

      .Present at this time were the district attorney of West Baton Rouge Parish and his secretary, a deputy sheriff of that parish, a lieutenant of the East Baton Rouge Parish sheriff’s office, and the same deputy who had previously done the recording.

      . Counsel had some time previously, and with court permission, withdrawn the original plea .of “not guilty” in lieu of a motion for a bill of particulars.

      . It appears that during the examination of the several witnesses present when the accused confessed in New Orleans police headquarters it developed that in addition to some unknown bystanders, a police officer by the name of Stevens was present when he was arrested, that some time thereafter a patrol car manned by officers Stentz and Michel was called to take him to jail, and, further, that at some point during the incident — just when is not clear — accused’s employer emerged from the house.

      . State v. Sauls, 226 La. 694, 77 So.2d 8, has no application inasmuch as experts were there appointed to determine the sanity of the accused at the time of the commission of the offense.

      . The rehearing herein is limited to a reexamination of this bill.

      . The index shows that the order appointing a lunacy commission is to be found on page 18 of the record. However, the designated order, dated September 17, 1954, is one directing the Sheriff to transfer appellant to the Bast Louisiana State Hospital at Jackson so that the lunacy commission might examine him with respect to his present mental condition. It also refers to another order, issued on the same day, appointing the lunacy commission but the latter is not contained in the portion of the record designated by the index. It is actually located at page 79 of the transcript, being attached to certain testimony which forms part of Bill of Exceptions No. 6.

      . It reads: “Whenever, on a prosecution by indictment or information, the existence of insanity or mental defect on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or more disinterested physicians not exceeding three to examine the defendant * *

      . Actually, defense counsel elected to place the doctors on the stand after the report of the lunacy commission, favorable to appellant, had been introduced in evidence.


author: TATE, Judge.

text:
    Maurice ROY, Plaintiff-Appellee, v. MANUFACTURERS CASUALTY INSURANCE CO., Defendant-Appellant.
    No. 4205.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    Davidson, Meaux, Onebane & Nehrbass,. Lafayette, for appellant.
    Babineaux & Huval, Lafayette, for ap-pellee.
   TATE, Judge.

Defendant insurer appeals- from the. award of workmen’s compensation to plaintiff-employee for total and permanent disability.

Chiefly factual issues are raised by this appeal.

In seeking reversal of the District Court judgment, defendant urges: (1) that the disabling accident is not proved by a preponderance of the evidence; (2) that the medical evidence does not support an award for total and permanent disability.»

Plaintiff Roy testified that on the morning of Saturday, June 13, 1953,' he wrenched his back while unloading a 200-250 lb. prefabricated cement stairway. The co-employee with Roy at the time of the accident unfortunately died prior to trial. Because the employer’s office manager and its shipping clerk both testified that they did not remember Roy informing them of the accident until the following Monday or Tuesday, defendant seeks to discredit the occurrence of the accident. . ' '

However, the uncontradicted testimony of Roy that an accident had occurred ■ is further corroborated by the testimony of. another, co-employee, Begnaud, that on Saturday, morning immediately after the accident Roy told him about wrenching his back; and by the testimony of Roy’s wife and brother-in-law that Roy had come home during the Saturday morning to have his back rubbed following the accident and was unable to help with heavier duties the rest of the day (or in fact since the accident). Roy has consistently given the same version of the accident to the various doctors who have treated him.

The District Court’s factual determination that an accident occurred is supported by the preponderance of the evidence. Further, “It is well established by our decisions that an accident can be proved by the plaintiff alone if there are corroborating circumstances”, O’Connor v. American Automobile Ins. Co., La.App. 1 Cir., 32 So.2d 624, 626, at page 628; see, e. g., Zito v. Standard Accident Ins. Co., La.App. 1 Cir., 76 So.2d 25, and Dolhonde v. Gullett Gin Co., La.App. 1 Cir., 25 So. 2d 104.

The medical evidence, corroborated by lay testimony, preponderantly shows that Roy is unable to perform duties similar to those in which engaged at the time of the accident as truck driver and general delivery man by reason of disability resulting from the accident.

Dr. James Gilly, orthopedic specialist, and Dr. Z. B. Bienvenue, general practitioner who treated plaintiff following the accident over a period of approximately 17 weeks, testified that Roy could not perform heavier duties without substantial pain because of a condition of “chronic lumbosacral strain superimposed upon a previously existing degenerative arthritis of the spine”, caused by the acute lumbo-sacral strain sustained in the accident. As a result, there is approximately 50% limitation of motion of plaintiff's spine. Dr. C. V. Hatchette, orthopedic specialist of Lake Charles, also found plaintiff disabled at the time of his examination by lumbosacral strain, although he discounted the effects of the arthritis; but he, like the other doctors, found objective symptoms of muscular spasm and found plaintiff completely disabled immediately prior to the trial for performance of other than light work.

Dr. Gilly found that plaintiff’s condition, rather than improving, had somewhat deteriorated immediately prior to the trial. Both Dr. Gilly and Dr. Bien-venue diagnosed plaintiff’s disability as permanent. Dr. Hatchette estimated that with proper treatment plaintiff might recover in approximately 3 months more ; but, despite defendant’s contrary contention, “we are not to speculate on the time it would require for his recovery or in fact whether he would recover at all, especially in the face of the conflicting medical testimony”, Brown v. International Paper Co., La.App., 58 So.2d 557, at page 560.

Defendant urges that we should disregard the District Court’s factual finding based upon this preponderant testimony that plaintiff is disabled, because a Dr. Daniel Kingsley, orthopedic specialist of Alexandria testifying on behalf of defendant, concluded that any muscle spasm he found was voluntary and conscious. Defendant apparently argues that Dr. Kings-ley is more qualified because of longer medical experience than that of the other doctors testifying. Of course, longevity of experience does not necessarily guarantee greater accuracy of observation or opinion. We may add the record indicates quite without justification Dr. Kingsley’s apparent characterization of this man as a malingerer, in view of his excellent working record prior to the accident, his undoubted cooperation with the doctors who examined and treated him, and his willingness to undertake any treatment recommended by these doctors.

Defendant finally complains that the District Court incorrectly allowed compensation based on weekly wages of $45, rather than only $40.

Plaintiff was paid $40 per week as a truck driver, from which social security and federal income tax were deducted. He was additionally paid in cash $5- per week by his employer to clean up the premises-at night. It is undenied that this total wage of $45 per week was regularly paid to him by employer-insured. The District Court therefore correctly based his compensation rate at 65% of these regular weekly wages, or at $29.25 per week. See e. g., Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855; Clark v. Forest Lumber Co., 1 Cir., 9 La.App. 639, 120 So. 88. Cases cited to us by defendant disallowing extra pay as a basis for compensation such as Scott v. Fulton Bag & Cotton Mills, La.App., 65 So.2d 397, 398, Reynolds v. Forcum-James Co., La.App., 162 So. 211, concern the receipt of the extra pay only occasionally, and not (as here) as a regular part of the pay for the employment.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed.

Affirmed.


author: ELLIS, Judge.

text:
    Succession of Paul MOSS.
    No. 4144.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellant.
    Gilbert H. Graham, Lake Charles, for ap-pellee.
   ELLIS, Judge.

This suit involved the same question which was under consideration in the Succession of Brower v. State, La.App., 80 So. 2d 217, decided by the Second Circuit Court of Appeal in which writs were granted by the Supreme Court and the judgment of the Court of Appeal was reversed by the Supreme Court and a rehearing denied in 228 La. 785, 84 So.2d 191.

Counsel for plaintiffs in his brief has succintly stated the nature of the case and the issues therein and we quote:

“Plaintiffs are the surviving widow in community, testamentary executrix and legatees of the decedent Paul A. Moss, who died intestate in the Parish of Calcasieu on August 6, 1947. They seek by this proceeding to have the property of the estate declared free of inheritance taxes, and alternatively, to have the taxes, fixed. They contend that the inheritance taxes have prescribed under the provisions of Section 19 of Article 19 of the Constitution of the State of Louisiana for the year 1921 as amended. [LSA-Const.]
“The defense to the suit- is that the prescription plead by plaintiffs is not áppli-cable because their testate’s succession was opened and the, executrix qualified and had never filed an account and had the taxes fixed at the time this proceeding was instituted, therefore, the prescription did not commence to run or would be suspended until the inheritance taxes were fixed.
.. “The matter was submitted to the Court on an agreed statement of fact, and the Trial Judge, for written reasons assigned, rejected the plaintiffs’ demands to have the property decreed free of inheritance taxes and rendered a judgment in favor of the Tax Collector and against the plaintiffs fixing the inheritance taxes in accordance with the stipulation of fact filed in the record.
“The plaintiffs filed an application for a new trial, or a rehearing, which was overruled, and have appealed suspensively from the judgment fixing and ordering the inheritance taxes paid.
“The only issue presented in this case is whether under the facts as agreed upon the inheritance taxes are prescribed under Section 19 of Article 19 of the Constitution of 1921 as amended. Under the agreed stipulation it was admitted:
“ T. The decedent Paul A. Moss died intestate in the Parish of Calca-sieu on August 6, 1947. That he left a Last Will and Testament in olo-graphic form in which plaintiff, Edna' Hodges Nash, formerly Edna Hodges Moss, was named testamentary executrix; that said testament was dated November 10, 1943, and was duly probated in the Fourteenth Judicial District Court, Parish of Calcasieu, on Au- • gust 11, 1947.
“ ‘2. That under the terms of said Will the testator Paul A. Moss made special legacies in favor of Corinne and Vivian Moss in the sum of $3,000.00 and the minor, Frederick William Bell, in the sum of $1000.00. The legatees Corinne and Vivian Moss being sisters of the whole blood of the testator and the other legatee, Frederick William ■Bell, being a nephew of the testator, born issue of the marriage of his sister, Bernice Moss Bell and A. J. Bell; and petitioner, Edna Hodges Nash, testator’s surviving widow was bequeathed all of the remainder of his estate.
“ ‘3. That plaintiff, Edna Hodges Nash, qualified as testamentary executrix and letters testamentary issued to her on August 26, 1947, and that on October 3, 1947, an inventory of said estate was made and filed herein showing the total appraised value of the community property acquired by the decedent and the plaintiff, Edna Hodges Nash, to have been $36,600.00 and that the decedent’s half interest was $18,-300.00 and that the principal value of the succession was 142 shares of the capital stock of Charleston Storage Garage, Inc., which was appraised at $250.00 per share.
“ ‘4. That on October 3, 1947, Edna Hodges Nash, formerly Edna Hodges Moss, petitioned the court and obtained an order to advance to said estate the sum of $853.34 out of her personal money to pay funeral, hospital and burial expenses and two other sundry items owed by decedent, all of which amounted to $853.34, and that she be a creditor of said succession to that amount.
“ ‘5. That that was the last order or proceeding had in said succession.
“ ‘6. That the special legacies in favor of Corinne and Vivian Moss and Frederick William Bell have never been paid.
“ ‘7. That at the time of the testator’s death the Charleston Storage Garage, Inc., owed the Great Southern Life Insurance Company the sum of $20,863.50, which sum was secured by a conventional mortgage on all of the properties and lands of the Charleston Storage Garage, Inc., and that all of the income from the operation of the Charleston Storage Garage, Inc. has gone to pay the operating expenses of said business and to liquidate and pay the mortgage due to The Great Southern Life Insurance Company, and no stock dividend has been declared by said corporation.
‘8. That the mortgage due The Great Southern Life Insurance Company has been fully paid but that in order to pay the special legacies due Corinne and Vivian Moss and the minor, Frederick William Bell, the executrix will have to borrow the sums on her own account.
“ ‘9. That if the taxes are not prescribed under the three year period of prescription relied upon by the plaintiffs, then the amounts set forth in the petition for the rule are correct, as well as the penalties computed.’ ”
“After this suit was filed and tried in the District Court, but before the District Judge rendered a decision, the Court of Appeal, Second Circuit, rendered a decision in the case of Succession of Brower v. State, La.App., 80 So.2d 217, wherein it was held that where the inheritance taxes were not fixed by a judgment of Court within three years from the 31st day of December in the year in which they were due they were prescribed and barred by the constitutional prescription. The same grounds were urged in that case as in the case at bar for freeing the property of inheritance taxes and the same defenses were made. The Supreme Court granted a writ of certiorari to the Court of Appeal, Second Circuit, in the Brower case and on November 7, 1955, rendered a decision reversing the judgment of the Court of Appeal, Second Circuit, and overruling the plea of prescription. 228 La. 785, 84 So.2d 191. An application for a rehearing has been filed in the Brower case and is now pending in the Supreme Court and if the Court does not grant a rehearing in that case and reverse its former decree and affirm the judgment of the Court of Appeal, Second Circuit, then that case will be controlling here because the Court held in that case that the taxes were not due until they were fixed by a judgment of the District Court and hence the prescription did not commence to run until that time. * * * ”

As previously stated, the Supreme Court has denied a rehearing in the Brower case and it is now final.

For these reasons the judgment of the' District Court is hereby affirmed.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana ex rel. Mrs. Winnie Davis WOOD et al. v. DAVIS-WOOD LUMBER COMPANY.
    No. 4194.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    Writ of Certiorari Denied June 11, 1956.

      A. M. Suthon, New Orleans,. Philip E. Pfeifer, Covington, for appellant.
    Raymond' H. Saal, Covington, O’Connor & O’Connor, New Orleans, for appellees.
   LOTTINGER, Judge.

This is a mandamus proceeding, initiated by relators, wherein they seek to cause the defendant to transfer to them 290 shares of the capital stock of the .defendant corporation standing in the name of relators’ husband and father, respectively, Robert M. Wood, Sr. The lower court rendered judgment in favor of relators and ordered the stock transferred into their names. The defendant has taken this appeal.

The record discloses that Mrs. Winnie Davis Wood, the widow and surviving spouse in community of Robert M. Wood, Sr., and, her five children filed this suit seeking to require the defendant to transfer into their names 290 shares of stock in the defendant company standing in the name of relators’ father and husband at the time of his death. In his succession .proceeding there was judgment treating said stock as community property, and sending the widow into possession of one-half thereof and the said children into possession of the other one-half thereof, subject to the usufruct as provided by law.

Defendant first filed an exception to service and alleged that John J. Davis, upon whom- the returns show that service was made as vice-president of defendant corporation was not the vice-president of said corporation. Next the defendant filed an exception to the capacity of one of re-lators, Winston H." Wood, to stand in judgment, he being a minor and it not appearing that he has been emancipated. A plea of judicial and equitable estoppel was also filed by the Davis Wood Lumber Co. against Mrs, Winnie Davis Wood, showing that she had claimed the stock at issue by other suits, filed against the defendant company as the heir of, her father and claiming that the stock at issue was issued to her husband, Robert M, Wood, Sr., through whom she now claims as surviving spouse, by collusion, fraud, etc., the two claims being inconsistent and having caused damage to the defendant company. After argument on the above exceptions, the lower court referred same to the merits. The defendant company then filed answer wherein certain of the allegations of re-lators were admitted, and others were denied. The lower court awarded judgment in favor of the relators.

The defendant company first moved for a rehearing, which was denied below. They then appealed to the Supreme Court, • and the appeal was transferred to this Court, 223 La. 161, 65 So.2d 124, because the record did not show the sufficient jurisdictional amount to have the matter reviewed directly by the Supreme Court. We sent the matter 'back to the lower court for evidence as to the amount involved, La.App., 72 So.2d 762, and same being far in excess of the required $2,000, we transferred the appeal back to the Supreme Court. By judgment of the Supreme Court, dated June 30, 1955, the matter was again transferred to this Court for review. 228 La. 55, 81 So.2d 767.

As to the first exception, i. e. the exception to the service of process, the Sheriff’s return shows that the copy of the writ, together with the petition and citation, were served on the defendant by leaving same at the office of the company in the Parish of St. Tammany. Said documents were handed to John J. Davis, vice-president, a person over the age of 16 years, during the temporary absence of the president. The Sheriff’s return shows this service to have been made on July 18, 1951, and in support of the exception, John J. Davis was sworn and testified that he was the secretary-treasurer of the defendant company since 1949, and that he had been formerly the vice-president but had resigned and accepted the secretary-treasurership; that W. H. Davis, Jr. was now the vice-president and had been for about seven months, and that W. H. Davis, Jr. lives at Mandeville, which is seven miles from La-combe. He further testified that the' principal office of the defendant corporation is in Lacombe and that they have a subsidiary office in New Orleans; that John J. Davis is generally in charge of the Lacombe office, and Mr. Dubois, under the supervision of W. H. Davis, is in charge of the office in New Orleans.

The record shows that the deputy sheriff who made the service obtained his information from Mr. John J. Davis himself and made his returns accordingly. Article II (2)of the Charter of the defendant corporation provides:

“The domicile of said corporation shall be in the Town of Lacombe, Parish of St. Tammany, State of Louisiana, and all citations and other legal process shall be served on the president, and in his absence on the Vice-President, and in the absence of both on the Secretary and Treasurer of said Corporation.”

Now the record discloses that both the president and vice-president were absent ‘from the principal office of the corporation at the time of service. Certainly the provisions of LSA-R.S. 12:37 were complied with in the service made. However, the defendant claims that Article 844 of the Louisiana Code of Practice requires service on the president of the corporation in a -mandamus proceeding, and that service upon any other officer is invalid.' We do not believe such to be the intention of the law. Service was made in accordance with the Charter of the corporation. The record shows that both the president and vice-president were absent at the time of said service. It is not unusual for the president to be absent from the corporate office for long periods of time. To strictly abide by the claims of defendant would, in many instances) delay service for long periods of«time. We feel that, as did the lower court, that the service was properly made, and the exception to service was properly overruled.

As to the exception to the capacity of petitioner, Winston H. Wood, to stand in judgment, the petitioner filed a supplementary petition to which was attached an order of emancipation. Since said amended petition was filed, defendant has not seriously pressed his claim, and we feel that this exception was properly overruled below.

The most serious exception by defendant was that of judicial and equitable estoppel. The record shows that Winnie Davis Wood, in the Receivership of Davis Wood Lumber Company, No. 10,990 of the Docket of the 22nd Judicial District Court, St. Tammany Parish, Louisiana, claims the 290 shares at issue herein, together with other stock of defendant corporation, as the heir of her late father, and claims that said 290 shares were issued to her husband, Robert M. Wood, Sr., by collusion and fraud between her husband, her father, John J. Davis, and William Davis. Defendant claims that, as said receivership proceeding is still pending, the petitioner, Winnie Davis Wood, should be estopped from now claiming the stock as surviving widow in community of her late husband. The claims are inconsistent as in one proceeding she claims that her father was the true owner of the stock and claims same as heir of her father, whereas in the present suit she claims the stock as surviving widow of her late husband. The relators, on the other hand, claim that the receivership proceeding has been abandoned in the Supreme Court, and in brief to this Court claims that a signed motion to dismiss has been presented the defendant corporation. No evidence, however, has been furnished this Court that the said proceeding has been actually dismissed by the Supreme Court.

A similar claim has been made by Winnie Davis Wood, in the matter of the Succession of John H. Davis, to the effect that Winnie Davis Wood and others are legally entitled to the stock as heirs of their late father, John H. Davis. A final judgment of dismissal in said matter has been rendered by the Supreme Court on February 20, 1956. 229 La. 314, 85 So.2d 886.

The ex parte judgment of the Civil District Court, Parish of Orleans, in the matter of the Succession of Robert M. Wood, Sr., recognized the widow and surviving spouse, and the children, as the heirs of the deceased and sent them into possession of the stock in question. The defendant has not attacked this judgment.

As the other two conflicting proceedings have been apparently abandoned, we do not feel that the exception of estoppel has any further merit. First of all, if we were to dismiss the present proceeding, the ownership of the stock in question would be undecided, and from the evidence presented it is certainly shown that the relators are entitled to immediate possession of same. Secondly, we are unable to see how the corporation could be adversely affected by the judgment of the lower court as it has not claimed any right to the stock.

In the case of Janney v. Calmes, 212 La. 756, 33 So.2d 510, 513, the Supreme Court said:

“Regarding the equitable estoppel pleaded, the jurisprudence of this court is that an estoppel is not favored and •that it will not be maintained unless the person urging it has been misled, to his prejudice, by acts of omission or commission of him who is sought to be estopped.”

In the present case, the defendant company has made no showing that it was misled to its detriment by the other proceedings in which the conflicting claims are made. Nor did said conflicting claims in any wise deceive, mislead or damage the defendant, at least no evidence of such is contained in the record. Under the jurisprudence cited under Article 2291 of the LSA-Civil Code, upon which the exception of estoppel is based, we feel that the conflicting claims which have now been abandoned would not now estop the relators from prosecuting their present claim. The present claim of relators is based upon a final judgment in the proceeding of the Succession of Robert M. Wood, Sr. This judgment sent his widow and children into possession of the 290 shares of stock. Defendant corporation does not seriously dispute that the stock belongs to the estate of the late Robert M. Wood, Sr., and we feel that defendant has no interest to question the transfer of stock on their books.

We have found no error in the judgment of the lower court, and for the reasons hereinabove assigned, the said judgment will be affirmed, all costs of this appeal to be paid by defendant.

Judgment affirmed.


text:
    Joseph M. FOULKS v. Lamar M. RICHARDSON.
    No. 4184.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    France W. Watts, Jr., Franklinton, for appellant.
    Carter, Erwin & Carter, Franklinton, for appellee.
   ELLIS, Judge.

Plaintiff, a real estate broker, appeals from a judgment dismissing his suit for a commission.

Foulks, the real estate agent, was given a contract by the defendant Richardson as an exclusive agent to sell the latter’s 120-acre Brock Farm for $18,500 of which $4,000 was to be a cash down payment, and further agreeing to pay Foulks $1,000 commission if the property was sold. This contract by its terms was to expire automatically without notice 30 days from date with the further stipulation, “I agree not to withdraw same if a sale is pending.” Foulks immediately advertised the property in “The Times Picayune” of New Orleans, the Baton Rouge papers and the local papers, and made personal contacts among whom was James D. Jordan, the eventual purchaser from Richardson of the property.

The testimony shows clearly that Foulks entered into negotiations with Jordan prior to the expiration date of the contract and stated that he went to the latter’s home twice and came over to see the defendant “by appointment and missed him both times.” Foulks was unable to bring- Jordan and the defendant Richardson together and realizing that the time was getting short, that is, the expiration date, of the contract which was November 1, 1952, he called Richardson on the telephone “before the first of the month, time was getting short,” and Richardson promised to protect him on his prospect, Jordan. There is no conflict on this point, in fact, Richardson admitted several times in his testimony that he told Foulks he would protect him on his prospect but insisted that that was based upon the provision of the written contract that he secure a $4,000 down payment. The written contract expired on November 1, 1952, and in accordance with Richardson’s promise to protect him on his prospect, Foulks, during the first week of November finally got Jordan and Richardson together to discuss the. proposed sale. The testimony shows that Jordan was anxious to buy this property, but realizing that it needed some improvements he could only make a down payment of $3,000 instead of the $4,000 and Richardson refused this offer. Richardson then, apparently during the next week or shortly thereafter, notified Foulks that since he could not get Jordan to pay $4,000 down payment the contract, apparently the verbal one, was at an end, and then, on November 18th, or within 10 or 11 days after he refused to accept a $3,000 down payment, he, Richardson, sold the property to Jordan for $23,355, spread out over 16 years, of which' amount $1,500 represented the down payment. Richardson testified that the $23,500, or $4,555 more, that he received was for the land, that the tractor and other equipment were not included in this consideration.

Upon learning of the sale,- Foulks demanded his $1,000 commission and Richardson offered him $250 “because the down payment was so small he didn’t want to give all that to me on commission.”

Richardson’s weak excuse for not carrying out his promise to protect Foulks is shown in his testimony under cross-examination when he was asked the following question and gave the following answer:

“Q. Did you ever promise to protect Mr. Foulks in any agreement relative to the sale of that place after the first of November, 1952? A. Yes, sir, if he would bring me an agreeable contract or down payment, and I would protect him on it, and we would start all over since this one had expired.”

In the opinion of the lower court it was held that the ultimate purchaser was not introduced by the real estate broker to the seller until after the expiration date of the contract which defendant had specifically refused to renew in advance of such first meeting. This statement is based upon the written contract which expired on November 1, 1952, but the error in the holding of the District Court is the failure to recognize the proven fact that the defendant had entered into a new oral contract with Foulks, the real estate broker. Therefore, under this interpretation the ultimate purchaser was introduced by Foulks to Richardson prior to the expiration of the oral contract. While it is true that this suit is filed upon the written contract, we have the sworn testimony of Foulks and of Richardson, without objection, to the effect that Foulks had called Richardson just before November 1, 1952, the expiration date of the written contract, for the very reason that he realized that it would expire, and Richardson at this time agreed to protect Foulks on his prospect, Jordan. By virtue of the new admitted verbal contract Foulks brought Jordan to Richardson during the first week of November, and the prospective sale of the property was discussed. In other words, Richardson’s actions in discussing the sale with Foulks and Jordan is further proof of the verbal agreement. Richardson was informed that Jordan could pay $3,000 cash and yet, he gives no satisfactory explanation in his testimony as to why within 12 or 14 days after refusing to sell the property on the terms agreed, with a reduction of $1,000 in the down payment, he then turns around and secures $4,555 more for the land from Jordan and accepts $2,500 less, or a $1,500 down payment. He seeks to escape payment of the commission on the ground that Foulks, the real estate agent, failed to get a $4,000 down payment from Jordan, and he then told Foulks that his contract was at an end, and after two weeks he sells the property to Jordan at a much more advantageous price but with a $2,500 reduction in the cash down payment.

Therefore, the written contract which expired on November 1, 1952, is not to be considered other than it fixed the price and terms for which Foulks was authorized to secure a purchaser, as well as the commission to be paid. The contract upon which Richardson should pay the commission to Foulks is the verbal contract which he admitted under oath to have made shortly prior to the expiration date of the written contract. Any contract admitted under oath is proven. Therefore, under the proven facts in the present case, the plaintiff Foulks procured the purchaser, Jordan, within the verbal contract granted to him by the defendant Richardson after the expiration date of the written contract. As stated, Richardson admitted this verbal contract under oath several times in his testimony. Further, it seems undeniable that plaintiff’s active efforts were a procuring cause of this sale; as stated by this Court in Womack Agencies, Inc. v. Fisher, La. App., 86 So.2d 732, “procuring cause” referred to the efforts of the broker in introducing, producing, finding and interesting a purchaser, and means that negotiations which eventually lead to a sale must be the result of some active effort of the procurer. Lehmann v. Howard, La.App., 49 So.2d 453; 34 Words and Phrases, Pocket Part, Procuring Cause.

It is undenied that plaintiff advertised the property extensively, that is, in the Baton Rouge, New Orleans and local papers, and made personal contacts, one of whom was Jordan, showed him the property and introduced and produced him to Richardson, the defendant, and interested him to such an extent that although he was only asked $18,500 originally for the pur-chase of the property under the terms of the plaintiff’s contract, that within two weeks after Richardson says he notified the plaintiff that their contract was at an end, he gave $4,555 more for the property and instead of having to pay $4,000 cash down payment was allowed to pay $1,500 with sixteen years to pay the balance. Under these facts the negotiations which eventually led to a sale of this property to Jordan were the result of the active efforts of the plaintiff. The defendant admits he never knew Jordan until Foulks introduced him.

The mere fact that Richardson decided to accept $1,500 down payment rather than $4,000 down payment does not and cannot under the well-settled law deprive the plaintiff of his earned commission. This law is fully stated in the Womack opinion as follows:

Actually, it seems well settled that “Although agreement to sell is reached with the, ultimate purchaser after the final expiration date of the contract a'S agent to sell the property (in this case, October 22nd), nevertheless the seller is liable to the agent for the latter’s commission if the agent was the procuring cause of the sale, and if the sale was the direct and continuous result of negotiations entered into while the contract was in force, even though the selling price be lower than that listed as minimum in the contract, Gottschalk v. Jennings, 1 La.Ann. 5; Corbitt v. Robinson, La.App., 53 So.2d 259; Sollie v. Peoples Bank & Trust Co., La. App., 194 So. 116; Harvey v. Winters, 1 La.App. 383. In all of these cases a broker was allowed to recover his fee although the seller did not reach agreement with the purchaser until after the technical expiration date of the’agent’s contract. As set forth in Harvey v. Winters, the rule is based upon equity and fairness, as otherwise the parties to the sale can easily avoid compensating the broker who brought them together to the verge of the sale by tacitly, or at least unprovably, agreeing to delay acceptance until after the broker's contract expires.

Applying the above statement of the law, the plaintiff in this case was the procuring cause of the sale, which was the direct and continuous result shown by the facts in the case of negotiations entered into while the verbal contract was in force, although Richardson did not reach a final agreement with Jordan until after he says he discharged Foulks or notified him that his verbal contract was at an end or “until after the technical expiration date of the agent’s contract.” It would be inequitable and unfair to deny plaintiff his commission under the facts in this case. To do so would be doing what the court in Harvey v. Winters, supra, stated should not be allowed, viz., that the parties to the sale could easily avoid compensating the broker who brought them together to the verge of the sale by tacitly or at least unprovably agreeing to delay acceptance until after the broker’s contract expires, in this case until after Richardson had discharged plaintiff. In the present case the lower court held that the plaintiff had not within the time limit produced a person ready, willing and able to purchase on the owner’s terms. The lower court fell into error in not accepting as a contract the verbal agreement by Richardson which he admitted under oath to protect Foulks on his prospect, Jordan, and it was based upon the promise and agreement by Richardson that Foulks introduced and produced Jordan to Richardson. Can it be said that a broker who produces a person ready, willing and able to purchase for $18,500 and $3,000 cash down payment, but who is allowed by the owner, within two weeks after the technical expiration of the contract, to purchase for a cash down payment of $1,500 and a total price of $23,355, is not entitled to his commission? We think not.

Counsel for plaintiff relies upon the case of Viguerie v. Mathes, 10 La.App. 246, 120 So. 542, 543, which we believe is controlling. The Court in this case stated:

“The question for consideration here is whether the original contract for the purchase of defendant’s property had been abandoned as defendant contends, or whether it had only been amended as a result of negotiations between the owner and the purchaser, continuing beyond the 45-day period mentioned in the contract.
* * * * * *
“Under the circumstances, we are of the opinion that the plaintiff, Viguerie, was the procuring cause of the sale and is entitled to his commission. The fact that there was some difference between the original offer procured by plaintiff, and that afterwards accepted by the defendant, is immaterial, since the basis of the final transaction, by which this property was sold, was the original offer made by Ritchie and procured by plaintiff.”

It might be argued that plaintiff could only recover under quantum meruit. There might be some merit in this argument were it not for the fact that the defendant Richardson admitted under oath without objection that he verbally agreed to protect the plaintiff Foulks with regard to his prospect, Jordan, the eventual purchaser of the property. Richardson also admitted that he had no objection and expected to pay $1,000 commission had the plaintiff secured a $4,000 down payment from Jordan. There was no difference in the terms of the verbal contract and the written contract insofar as the amount of plaintiff’s commission was concerned. Under the facts in this case and the law applicable, the plaintiff has earned his commission of $1,000.

It is therefore ordered that the judgment of the District Court be reversed and that there be judgment in favor of the plaintiff, Joseph M. Foulks, and against the defendant, Lamar M. Richardson, in the full sum of $1,000 with legal interest from judicial demand until paid.

It is further ordered, adjudged and decreed that the defendant pay all costs.

      . “ ‘The reports of appellate court decisions of this State teem with similar cases and as we said in the case of Jeter & Monroe v. Daniels, La.App., 25 So.2d 911, 912: “Down through the years, as shown by the reported cases, beginning with Gottschalk v. Jennings, 1 La.Ann. 5, 45 Am.Dec. 70, to the present, people have sought to reap the benefits of the efforts of real estate brokers without paying them for their work. In every case where the broker has procured the purchaser, the courts have awarded judgment” ’, Cruse v. Bruscate, La.App., 28 So.2d 56, at page 58. See Also Grace Realty Co. v. Peytavin Planting Co., Inc., 156 La. 93, 100 So. 62, 43 A.L.R. 1096.”


text:
    Agnes Gillen BEADLE, Plaintiff-Appellant, v. MASSACHUSETTS BONDING & INSURANCE CO., Defendant-Appellee.
    No. 4199.
    Court of Appeal of Louisiana. First Circuit.
    April 27, 1956.
    Rehearing Denied May 25, 1956.
    Adams & Reese, Pat F. Bass, New Orleans, for appellant.
    Brumby, Aycoclc, Horne & Caldwell, Franklin, for appellee.
   TATE, Judge.

The widow of Garrett John Beadle sues for Louisiana workmen’s compensation allegedly due for his accidental death while employed by defendant’s insured. Defendant appeals from judgment in favor of plaintiff widow.

Defendant urges reversal on the ground that, since the deceased employee was a seaman, sole remedies available are within the federal admiralty or maritime jurisdiction, which excludes the recovery allowed under the Louisiana Workmen’s Compensation Act.

On December 2, 1953, Beadle was drowned while on an errand for his employer, George Williams. Williams operated several small boats under contract to supply from his Morgan City base various “on the water” drilling sites for various oil companies. Decedent had been employed for several years prior to his death as pilot, deckhand, and sole member of the crew of the towboat, M. V. Frisco. This craft, 48' in length, was used to haul supplies to drilling sites on West Lake Verret.

The Frisco plied the navigable waters of the United States. Becaus'e of this fact and the nature of Beadle’s duties, it is unquestioned that Beadle was a “seaman” as defined by admiralty and maritime law.

Decedent was drowned on the Atchafala-ya River, a navigable water, while operating his personally owned small outboard motor boat. It is unknown why he fell therefrom. At the time of his death, Beadle was on behalf of his employer seeking a replacement to operate the “Frisco” during Beadle’s vacation.

Beadle’s employment was within the protection of our Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., under the specific terms thereof, which lists among the hazardous occupations included ■ within the coverage of the Act: “The operation, construction, repairs, removal, maintenance and demolition of railways and railroads, vessels, boats, and other water crafts,” LSA-R.S. 23:1035 (Italics ours).

In an extremely able brief, defendant-appellant urges that it is not within the constitutional power of any State to include maritime employees within the protection of the State’s workmen's compensation statute, citing Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, .and the body of jurisprudence thereunder, including Swan v. Baton Rouge Transportation Company, La.App. 1 Cir., 197 So. 191, decided by this Court in 1940.

Basically, this claim to exclusive federal remedy is founded on the provision of Article III, § 2, U. S. Constitution that the judicial power of the federal government “shall extend to * * * all Cases of admiralty and maritime Jurisdiction”.

The Swan case excellently summarizes the jurisprudence prior to its rendition, and the basic rationale thereof; that State compensation acts attempting to provide a remedy to maritime employees for injuries within the State “had the effect of working material prejudice to the characteristic features of the federal maritime law and interfered with the proper harmony and uniformity of the law in its international and interstate relations”, 197 So. 192.

At the same time, however, it was recognized that maritime workers could properly recover under the State compensation acts, if such recovery would not work material prejudice to necessary uniformity in administration of maritime law, Dourrieu v. Board of Commissioner, La.App., 158 So. 581; see also Sidney v. Lykes Brothers S. S. Co., La.App., 8 So.2d 550. See also: 1 Am.Jur. 575, Verbo “Admiralty”, Section 50; see 2 C.J.S., Verbo Admiralty, § 62b, p. 125.

In the previously cited Swan case, 197 So. 191, this court commented on the strong dissents from the Jensen doctrine, the “harsh and unsatisfactory results” caused by application thereof, and the tendency of the courts to limit the case. Subsequently thereto, our United States Supreme Court in Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (with one Justice dissenting) substantially modified the approach of the Jensen decision. We note that all United States Supreme Court decisions, and practically all other cases, cited to us by appellant were decided before the Davis decision.

In the Davis case, our Supreme Court discussed the basic unworkability of a strict construction of the Jensen rule, as follows:

“The very closeness of the cases cited above and others raising related points of interpretation has caused much serious confusion. It must be remembered that under the Jensen hypothesis, basic conditions are factual: Does the state law ‘interfere with the proper harmony and uniformity of’ maritime law? Yet employees are asked to determine with certainty before bringing their actions that factual question over which courts regularly divide among themselves and within their own membership. As penalty for error, the injured individual may not only suffer serious financial loss through the delay and expense of litigation, but discover that his claim has been barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere. See e. g., Ayers v. Parker, D.C., 15 F.Supp. 447. Such a result defeats the purpose of the federal act, which seeks to give ‘to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modem principle of compensation’, and the state acts such as the one before us which aims at ‘sure and certain relief for workmen.’ ” 317 U.S. 254, 63 S.Ct. 228.

As a solution to the problem, the Court offered the now famous “twilight zone” doctrine, stating that:

“There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.” 317 U.S. 256, 63 S.Ct. 229.

As a guide to the future, the Court concluded with this observation:

“Under all the circumstances of this case we will rely on the presumption of constitutionality in favor of this state enactment; for any contrary de-cisión results in our holding the Washington act unconstitutional as applied to this petitioner. A conclusion of unconstitutionality of a state statute can not be rested on so hazardous a factual foundation here any more than in the other cases cited.” 317 U.S. 258, 63 S.Ct. 230.

Implicit in this decision, and explicitly stated by Mr. Justice Frankfurter’s concurring and Mr. Chief Justice Stone’s dissenting opinions, is that the employee’s choice of either the' federal or the State remedy will be sustained where the two remedies- overlap.

As stated by In Moores’ Case, 323 Mass. 162, 80 N.E.2d 478, 480, allowing a maritime recovery under a State compensation act:

“Mr. Justice Frankfurter says that ‘Theoretic illogic is inevitable so long as the employee * . * * is permitted to recover’ at his choice under either act. [Davis v. Department of Labor] 317 U.S. at page 259, 63 S.Ct. at page 230. Probably therefore our proper course is not to, attempt to reason the matter through and to reconcile previous authorities, or to preserve fine lines of distinction, but rather simply to recognize the futility of attempting to reason logically about ‘illogic,’ and to regard the Davis case as intended to be a revolutionary .decision deemed necessary to escape an intolerable situation and as designed to include within a wide circle of doubt all water front cases involving aspects pertaining both to the land and to the sea where a reasonable argument can be made either way, even though a careful examination of numerous previous decisions might disclose an apparent weight of authority one way or the other. We can see no other manner in which the Davis case can be given the effect that we must suppose the court intended it should have, and we must assume that the court intends to follow that case in the future.”

This case was affirmed by a per curiam decision of the United States Supreme Court, Bethlehem Steel Co. v. Moore, 1948, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417. Soon thereafter a contrary California court decision was reversed by a per curiam- decision, referring to the Moore case, Baskin v. Industrial Accident Comm., 1949, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523. Thus, since the Davis case, the United States Supreme Court has continued to sustain the employees’ choice of remedy where no material prejudice is worked to any feature of the general maritime law.

In oral argument, appellant strongly urged that the “twilight zone” doctrine only applies as between longshoremen (and not seamen) on the one hand, and land workers on the other. It is true that most of the cases do concern longshoremen rather than seamen. But the jurisprudence in this regard uniformly hinges, not upon distinctions between various types of maritime employees, but upon the maritime employee’s choice of the State compensation remedy as against the overlapping federal remedy available.

All these federal remedies, whether for seamen or for longshoremen and harbor workers, stem from the identical clause in the United States Constitution conferring jurisdiction in admiralty and maritime matters upon the federal government. There appears to be no sound reason in general theory why the “twilight zone” approach should be limited to longshoremen. Of course, in particular instances, it is much more likely that a seaman’s choice of the State remedy might materially interfere with the uniformity of the admiralty law in its international and interstate relations, than that a longshoreman’s might do so.

In Maryland Casualty Co. v. Toups, 5 Cir., 1949, 172 F.2d 542, a seaman’s widow was permitted to recover under the Texas Workmen’s Compensation Act. No distinction whatsoever was made that the decedent was a seaman rather than a longshoreman. Writs of certiorari were denied by the United States Supreme Court, 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1119.

The following remarks and holdings therein are extremely applicable to the present suit, 172 F.2d 546:

“The deceased, under the holdings of the Supreme Court in Norton v. Warner [Co.], 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 430, was, no doubt, a seaman on a vessel engaged in navigation and in aid of navigation, whose heirs, in the absence of an applicable State Workmen’s Compensation Act, would be remitted to the Jones Act [46 U.S.C.A. 988] for redress. But since an action under the Jones Act must be grounded upon negligence, and since in the present case no negligence of the employer can be shown, the heirs of the deceased would be without remedy under that Act or in admiralty. Such a result is not imperative unless the invocation of the State Compensation Act would ‘interfere with the proper harmony or uniformity of that law (admiralty) in its international or interstate relations.’ No inharmonious result is here possible. The deceased at the time of his death was working upon the dock making fenders for the use of his small boat. He hauled no interstate or foreign commerce. Neither his vessel nor his work affected the intricate relations that involve the ship, crew, master, owner, cargo, shipper, consignee, or responsibility, or lack of it, under the law of the sea. Neither the activity of the deceased nor the method of compensation agreed upon for his family could have interfered with the proper harmony or the uniformity of the lazv that prevails, and should prevail, in all substantial relations arising out of maritime commerce, whether interstate or international.” (Italics ours.)

In the present case, Beadle was operating his personal motor boat on an errand for his employer at the time of his death. We fail to see how allowing recovery under the Louisiana compensation act, presumed to be constitutional, will work any material prejudice to the characteristic features of admiralty and maritime law, involving the intricate relations, between “ship, crew, master, owner, cargo, shipper, consignee, or responsibility, or lack of it, under the law of the sea”, 172 F.2d 542.

In able and eloquent argument, counsel for appellant portends chaos and confusion should we permit recovery under the State compensation law for injury sustained by a maritime employee. The premise of this argument is that the federal maritime remedies must be exclusive of the State compensation remedy. In view of the contrary holding of the Davis case, this premise is fallacious. The remedies may overlap; and when they do, as in the present instance, the employee’s choice of either will be upheld.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed.

Affirmed.