author: SIMON, Justice. HAMITER, Justice McCALEB, Justice

text:
    229 La. 556.
    STATE ex rel. Fred S. LE BLANC v. DEMOCRATIC STATE CENTRAL COMMITTEE et al. and STATE ex rel. Dave L. PEARCE v. DEMOCRATIC STATE CENTRAL COMMITTEE et al.
    Nos. 42804, 42805.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      Fred S. LeBlanc, Atty. Gen., pro se and A. Leon Hebert, Ashton L. Stewart, Baton Rouge, for relators.
    Rufus D. Hayes, Jack P. F. Gremillion, Baton Rouge, Camille F. Gravel, Jr., Alexandria, Edmund M. Reggie, Crowley, G. Dupre Litton, N. Clebúrn Dalton, William C. Bradley, Baton Rouge, for respondents.
   SIMON, Justice.

' Relators, Fred S. LeBlanc, Attorney General of the State of Louisiana, and Dave L. Pearce, Commissioner of Agricultute and Immigration, seeking re-election to thei'r respective offices, qualified for nomina-' tion by the Democratic Party in the gubernatorial primary election held throughout the Staté óf Louisiana on January 17, 1956, for which offices 'neither candidate had received a majority of 'the votes cast, and when the Democratic State Central Committee by its resolution of February 1, 1956, declared Jack P. F. Gremillion and Sidney J. McCrory’ as the party nominees for the offices of Attorney General and Commissioner of Agriculture and Immigration, respectively, each having received a plurality of the votes cast as reflected by the official promulgation of the returns of said election duly certified by Hon. Wade O. Martin, Secretary of State, each on the day following, February 2, 1956, instituted identical proceedings in the Nineteenth Judicial District Court, Parish of East Baton Rouge, and secured a rule nisi directed to the Democratic State Central Committee through its chairman, Rufus D. Hayes, and its secretary, Jesse L. Webb, Sr., Wade O. Martin, Jr., Secretary of State, Jack P. F. Gremillion and Sidney J. McCrory, commanding them to show cause (1) why a preliminary injunction should not issue prohibiting each of them from acting upon said resolution and (2) why alternative writs of mandamus' should not issue compelling them to provide a second primary for the respective offices claimed by each. Pending the trial of said rules, which were made. returnable on Tuesday, February 7, 1956, the district court issued a temporary restraining order.

The relators, nevertheless, on Sunday, February 5, 1956, applied to this court for writs of certiorari, prohibition and mandamus, averring that a timely adjudication of the issues involved in this suit by the lower court and on appeal would be impossible if the mandatory laws of this state with respect to the printing and distribution of official ballots by the Secretary of State for absentee voting and the preparation of voting machines to be used were to be observed and followed. On the following day the respondents joined relators in their application, imploring us to exercise our supervisory jurisdiction in granting an immediate hearing. Whereupon this court, because of the exigencies of this case, followed its action adopted in the case of Long v. Martin, 194 La. 797, 194 So. 896, relaxing its general rule that it will not exercise its supervisory jurisdiction over other courts without first requiring the complainant to make his defense in the other courts and there exhausting his remedies, and accordingly granted the writs, fixing the same for hearing on the following day.

On the date of the hearing, the respondents in each case filed exceptions (1) to the jurisdiction of the court ratione materiae, (2) of no cause and no right of action, and (3) an answer.

These cases, presenting identical issues, were consolidated for argument and disposed of by decree handed down on February 7, 1956, 229 La. 549, 86 So.2d 189; 229 La. 555, 86 So.2d 191, maintaining respondents’ exception of no cause of action and dismissing relators’ suits.

Respondents’ pleadings shall be grouped into one for the purpose of disposing of the issues presented, all being founded upon the law of the case—that is, that under our Primary Election Law when a candidate for the office of governor receives a majority of the votes cast, there is no provision authorizing a second primary for lesser state offices, and where no majority is received by any candidate for said lesser offices, the respective candidates therefor receiving a plurality of the votes cast must be declared the Democratic nominees by the Democratic State Central Committee and their names officially certified to the Secretary of State to be printed on the official ballots in the general election.

The Legislature of this state, in pursuance to the mandate of the LSA-Constitution of 1921,- Article 8, § 4, commanding it to enact laws securing fairness in primary elections, conventions or other methods of naming party nominees, adopted Act 97 of 1922, commonly known as our Primary Election Law. This statute, though amended and re-enacted with some changes, in most instances grammatical and not pertinent here and which in themselves in no way alter the legal meaning and interpretation to be placed thereon, remains substantially the law as preserved and reenacted, after meticulous scrutiny by the Legislature, into the Revised Statutes of this state as LSA-R.S. 18:356.

The applicable sections of our Revised Statutes pertinent to this case manifestly and patently show that there is no provision in our law requiring the Democratic State Central Committee to call a second primary for lesser state offices, the respective candidates for which have failed to receive a majority of the votes cast, in thé event a candidate' for governor receives a majority of the votes cast for that office in the first primary.

The applicable and pertinent sections heretofore referred to read as follows:

“Tabulation and compilation of returns; promulgation; certification of candidates; preservation of tally sheets

“Immediately upon receipt, the Secretary of State shall tabulate and compile the returns in all elections for United States Senators, Congressmen, and state officers voted for throughout the entire state and respective congressional and supreme court districts, or for any other state board or commission, or for any state officer whose election is provided by law, and shall promulgate them in the official journal of the state within eight days after the date of the primary. He shall forward at the same time, by special • delivery, a certified copy thereof, under his signature and seal of office, to the chairmen or secretaries of the respective committees ordering the elections, which shall be the official tabulation of the returns of the elections except when contested as provided for in this Part. Immediately upon receipt of the certification from the Secretary of State, the. chairman or secretary of each of the committees to whom the returns have been forwarded shall convene his committee for the purpose of declaring the nomination of the persons shown by the certification of the Secretary of State to have received the greatest number of votes. They shall certify the names of the persons to the Secretary of .State.

“In all other primary elections the returns shall be tabulated and compiled by the respective committees ordering the primaries and the results thereof certified to the Secretary of State. The chairman of the committee, immediately upon receiving the returns, shall open them and cause them to be tabulated and compiled, and at twelve o’clock noon on the fourth day after the primary, the committee ordering it shall convene at the same place and the chairman thereof shall submit to it the tabulated statement showing the result of the primary and the original returns received by him. * * *” LSA-R.S. 18:355. (Italics ours.)

“Second primary for governor and other state officers; pláce and date; expenses

“If no candidate for the office of governor should have received a majority of the votes cast for that office, a second primary shall be held for governor and for all other state officers the candidates for which have failed to receive a majority of the votes cast for the office for which they were respectively candidates. The second primary shall be held at the same places as the first primary five weeks from the date of the first primary. However, if this day falls on Mardi Gras the second primary shall be’ held six weeks from the date of the first primary. The expenses of the second primary shall be borne in the same manner as those of the first primary.” LSA-R.S. 18:356. (Italics ours.)

“Commissioners at second primary; selection; appointment and commission; list of commissioners and watchers; delivery of ballot boxes and other supplies; alternate commissioners

“In a second primary for governor and other state officers nominated at the same time that a governor is nominated, or in a second primary for mayor in municipal elections, the commissioners who conduct the second primary are selected as follows:

“(1) In second primaries for governor, each candidate for governor shall, at least twenty-one days prior to the second primary, submit to the chairman of each respective parish committee the names of five persons for each precinct in the parish, to act as commissioners and watchers at the primary. * * * . •

******

“(3) In all other second primaries held under the provisions of this Part, the same commissioners and alternate commissioners or watchers who served in the first primary serve in the second. No commissioner or watcher who has been appointed and served as a commissioner in the first, primary and who is required to serve in a second shall fail to serve unless he is incapacitated.

“Whoever violates this last provision shall be punished as provided in R.S. 18:-369. * * *” LSA-R.S. 18:357. (Italics ours.)

“Second primary for local officers; place and date; number of candidates; tie vote; failure to elect or death or withdrawal of candidate

“After the committee has met and proclaimed the results as provided in this Part, if any candidate has failed to receive a majority of the votes cast for the office for which he was a candidate, except in cases wherein under the provisions of this Part a plurality of votes nominates, a second primary shall be held with the same election officers and at the same places as the second primary for the state officers and United States Senators or Representatives in Congress. If there is no second primary for state officers or United States Senator or Representative or if the first primary is held at a time when neither state officers nor United States Senators or Representatives shall be voted for, the second primary shall be held five weeks from the date of the first primary. If this day falls on Mardi Gras, the second primary is held six weeks from the date of the first.” LSA-R.S. 18:358.

In saying that a second primary for lesser state offices shall be held only when there is a second primary for the office of governor, it is significant that Section 18:356 provides as a condition precedent to the calling of a second primary for all other lesser state offices the.failure of a candidate for governor to have received a majority in the first primary.. Omitting this conditional clause, the language of this section would read:

“* * * a second primary shall be held for governor and for all other state officers the candidates for which have failed to receive a majority of the votes cast for the office for which they were respectively candidates. * * *” (Italics ours.)

It is crystal clear, therefore, that when a candidate for the office of governor, as in the instant case, has received a majority of the votes cast for that office, the condition under which a second primary can be called for lesser state officers who have not received a majority of the votes cast in the first primary is not present; and the ordering of a second primary for such lesser state officers is without legal basis or statutory authority.

Relators contend, however, that, under the provisions of Section 18:356 when read together with the provisions of Section 18:-358, it is the ministerial duty of the respondent Democratic State Central Committee to order a second primary for all lesser state offices for which no candidate received a majority of the votes cast in the first primary, and in support thereof rely on the language used in Section 18:358 to the effect that after the committee has met and proclaimed the results and any candidate has failed to receive a majority of the votes cast for the office for which he was a candidate, “ * * * a second primary shall be held with the same election officers and at the same places as the second primary for the state officers * *

A studied analysis of these two sections, LSA-R.S. 18:356 and LSA-R.S. 18:358, supra, together with the provisions of the other two pertinent sections, LSA-R.S. 18 :- 355 and LSA-R.S. 18:357, supra, clearly demonstrates the error of relators.

LSA-R.S. 18:358 is clearly inapplicable and not controlling in the present controversy. The Louisiana Revised Statutes of 1950, adopted as Act 2 of the Extraordinary Session of 1950 and published and distributed by the Secretary of State under the Authority and Seal of the State of Louisiana .and containing in part the afore-quoted sections, clearly indicates that Section 18:358 by its very caption, carried in heavy black type, applies only to second primaries for local offices, and that Section 18:356 by its like pronounced caption applies solely and exclusively to a second primary for governor and other state officers. Counsel for relators argue that the caption forms no part of the statute. Conceding for the moment the correctness of this contention, it cannot be questioned that the caption preceding each of these sections, when placed thereon by the Law Institute of this state and subsequently adopted by the Legislature as proposed, Act 2 of the Extraordinary Session of 1950, made crystal clear the particular applicability thereof.

The Louisiana Law Institute, its membership named and appointed by the Legislature and composed of our most eminent educators and lawyers, charged with the Herculean task of compiling, revising and correlating our statutory law, submitted its meritorious projet, which was enacted by the Legislature in its entirety as Act 2 of the Extraordinary Session of 1950. To hold otherwise would be tantamount to saying that the Law Institute and the Legislature, by the use of these captions did not intend to say what the words so clearly and unmistakably express.

At its very outset, Section 18:358, providing that the committee shall meet and proclaim the results, makes self-evident that such action applies to committees ordering the primaries for local offices. Under Section 18:355 the duty of compiling and promulgating the returns in all elections for the state officers is vested exclusively in the •Secretary of State and not in the Democratic State Central Committee. Upon receipt of the certification from the Secretary of State, it devolves upon the Democratic State Central Committee to convene and by appropriate action declare' the Democratic nominees for state offices. We have further observed that under the second paragraph of LSÁ-R.S. 18:355 it is provided that in "all other primary elections”, unquestionably referring to offices other than state offices, “the returns shall be tabulated and compiled by the respective 'committees ordering the primaries and the results thereof certified to the Secretary of State/’

Furthermore, the first paragraph of LSA-R.S.. 18:358 provides that a second primary shall be held with the same election officers and at the same places as the second primary for' state officers, and if there be no second primary for state officers, or if the first primary is held at a time when neither state officers shall be voted for, the second primary shall be held 5 weeks-from the date of the first primary._

It is manifest, therefore, that there is no conflict between LSA-R.S. 18:356, which applies exclusively to state officers, and LSA-R.S. 18:358, which is applicable only to local officers.

It is a fundamental principle of statutory construction that in the interpretation of a statute its meaning must be sought in the language employed, and if such language be plain it is the duty of the courts to enforce the law as written. When the provisions of our Primary Election Law were embodied in our LSA-Revised Statutes, they stood on a parity with each other, incorporated in one single Act adopted by the Legislature, and this being so it would be impossible to hold that one provision had the effect of repealing the other. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92; Babineaux v. Lacobie, 222 La. 45, 62 So.2d 95; State ex rel. Fudickar v. Heard, 223 La. 127, 65 So.2d 112; Guillot v. Nunez, 225 La. 301, 72 So.2d 513.

In State ex rel. Fudickar v. Heard, supra, in determining the intention of the Legislature with respect to statutes which had been re-enacted as part of the Revised Statutes, it was contended that we should consult the original acts for' the purpose of ascertaining whether or not one of the statutes in contest had been'repeated by the other. We rejected this argument, and with Chief Justice Fournet as its author stated [223 La. 127, 65 So.2d. 114]:

“It is. to be remembered that the Reyised Statutes constitute a single act of. the Legislature, adopted as a whole; different seo-tions should be regarded not as separate acts, but as simultaneous expressions of the legislative will, and all provisions should be construed together and reconciled whenever possible. In adopting the Revised Statutes of 1950, the Legislature incorporated both LSA-R.S. 42:371 and 42:373,. giving equal dignity to each; we must take them as written, and not search through the history of the acts carried into the Revised Statutes for defects, when a reading of the sections, disassociated from their history, presents no insuperable difficulty of construction.”

The extraordinary writ of mandamus is expressly defined in the Code of Practice to be “an order issued in the name of the State by a tribunal of competent jurisdiction, an address to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty or quality with which it is clothed.” Art. 829.

Our jurisprudence has unwaveringly adhered to the doctrine that such a writ lies only to compel the performance of duties that are purely ministerial in nature, duties which are so clear and specific that no element of discretion can be exercised in their performance. When such acts or duties necessarily call for the. exercise of judgment and discretion by the officer or body at whose hands their performance is required, this remedy will not avail a complainant. State ex rel. Daboval v. Police Jury, 39 La.Ann. 759, 2 So. 305; Badger v. City of New Orleans, 49 La.Ann. 804, 21 So. 870, 37 L.R.A. 540; Houeye v. St. Helena Parish School Board, 213 La. 807, 35 So.2d 739.

It is a well settled and established principle of law that in tliys absence of constitutional or statutory prohibition all elections and nominations as well as other matters relating to or affecting the same are governed by political parties and are, therefore, beyond judicial control. This doctrine was clearly announced in the case of Reid v. Brunot, 153 La. 490, 96 So. 43. In that case we took cognizance of the doctrine that political rights being defined to be rights exercisable in the administration of government and being opposed to civil rights which broadly comprehended all rights accorded to every member, such political right is not a natural right but exists, if at all, in the Constitution or statutes. 29 C.J.S., Elections, § 261.

In Long v. Martin, supra [194 La. 797, 194 So. 899], with the late Chief Justice O’Niell as the organ of the court, we said:

“If the executive committee of a political party, in rescinding the nomination of a party candidate and in nominating another candidate in his place, does not commit a fraud or violate any prohibitory law, the courts have no authority to question the wisdom of the committee’s action; nor has the disappointed candidate any cause or right to complain.” (Italics ours.)

The above enunciated principles are not peculiar to Louisiana, as they have their counterparts pronounced in other jurisdictions. Smith v. McQueen, 232 Ala. 90, 166 So. 788; Bullard v. Culpepper, 190 Ga. 848, 11 S.E.2d 19; Hooper v. Almand, 196 Ga. 52, 25 S.E.2d 778; Daly v. Madison County, 378 Ill. 357, 38 N.E.2d 160; Smith v. Howard, 275 Ky. 165, 120 S.W.2d 1040; Repsold v. Independent School District No. 8, 205 Minn. 316, 285 N.W. 827; Cloutier v. State Milk Control Board, 92 N.H. 199, 28 A.2d 554.

Section 7 of Act 46 of 1940; now LSA-R.S. 18:287, provides:

“When it is necessary by law to elect or select a party nominee for any of the recognized political parties and this Part does not make provision therefor, the state central committee may provide for the election or selection of the nominee.” (Italics ours.)

We necessarily conclude, for the reasons heretofore stated, that nowhere in our Revised Statutes pertinent to our Primary Election Laws, does there exist any provision commanding and requiring the Democratic State Central Committee the ministerial duty of ordering a second primary for the election of lesser state offices, where a candidate for the office of governor, as is shown here, has received a majority of the votes cast at the first primary election. It is also indisputable that there is no express law prohibiting the Democratic State Central Committee from adopting the resolution declaring respondents to be the Democratic nominees for their respective offices, and in the absence of fraud or prohibitory law, the exception of no cause of action filed by respondents should be sustained.

HAMITER, Justice

(concurring).

The source of our present primary election law, LSA-R.S. 18:281 et seq., is Act 46 of 1940.

The first paragraph of Section 20 of that statute directed the State Central Committee to meet in appropriate years and issue a call for a first primary election to nominate a candidate for governor and candidates for the lesser state offices running at the same time (referred to hereafter as “state officers”), the election to be held on the third Tuesday of January.

With reference to a second primary election for the nomination of a governor and the other “state officers”, Section 77 manda-torily provided: “In case no candidates for the office of Governor should have received a majority of the votes cast for that office, then a second primary election shall be held for Governor and for all other State officers the candidates for which shall have failed to receive a majority of the votes cast for the office for which they were respectively candidates and the second primary shall be held at the same places as the first primary was held, five weeks from the date of the first primary; provided, that if this day should fall on Mardi Gras, then the second primary shall be held six weeks from the date of the first primary. *' * * ” (Italics mine.)

And Section 79 recited: “If for any reason, there is no second primary to nominate a candidate for Governor, there shall be no second primary election for State Officers who ran in the first primary, but the person receiving a plurality of the votes cast for the office for which he was a candidate shall be declared to be the nominee of the party holding said primary.” (Italics mine.)

Under the specific provisions of the last quoted section the State Central Committee wras expressly prohibited from calling a second primary election for “state officers” if for any reason there resulted from the first primary a nominee for governor (for example, if a candidate for the latter office received a majority of the votes cast or one of the two “top” candidates therefor withdrew) .

Section 79 was repealed by Act 60 of 1944, while the other mentioned sections were carried into the Revised Statutes (without any material changes) and are now in full force and effect.

The repeal of Section 79 occasioned merely the removal of its prohibitory provisions from the primary election law. Undeniably, the repeal, in view of the language of such section, did not have and could not have had the effect of requiring the holding of a second primary for “state officers”.

As a consequence of the repeal of Section 79 the only provisions remaining in the law that relate to the holding of a second primary for the nomination of “state officers” are those contained in Section 77 (above quoted, and now LSA-R.S. 18:356. But such provisions, unlike those of Section 20 which are unqualified in directing the holding of a first primary for the nomination of “state officers”, require a second primary ‘Gf no candidate for the office of governor should have received a majority of the votes cast for that office”.

Accordingly, the statute is silent as to any specific procedure to be followed in the election of nominees for “state officers” when, as in these cases, a candidate for the office of governor receives a majority vote in. the first primary.

However, provision has been made by the lawmakers for such an eventuality. Section 7 of the 1940 statute, which is now LSA-R.S. 18:287, states: “In the event it is necessary by law to elect or select a party nominee for any of the recognized political parties, and this Act does not make provision therefor, then the State Central Committee, as herein created, shall be and is hereby fully authorized to provide for the election or selection of such nominee.” Thus, in a situation such as that with which we are presently confronted the State Central Committee is vested with wide discretion in making the selection of party nominees, the law not having specifically set forth the procedure for choosing them.

Therefore, with respect to the matter under consideration, the Democratic State Central Committee had complete authority either to call a second primary election or to declare (as it did in these cases) that each of the candidates for “state officers” who received a plurality of the votes in the first primary would be a party nominee.

For the success of these actions relators rely entirely qn that portion of Section 80 of the statute (now LSA-R.S. 18:358) which recites that if the Committee finds that “any candidate has failed to receive a majority of the votes cast * *• •* a second primary shall be held * * *.” But the section further states that such “second primary shall be; held with the same election officers and at the same places as the second primary for State Officers * * * ; if there be no second primary for State Officers * * * then 'the second primary shall be held five weeks from the date of the first primary ' * ' * This last quoted language, particularly in view of Sections 77 and 79 which specifically dealt with the matter of second primaries for “state officers”, makes it clear that the Legislature intended the provisions of Section 80 to apply to the nomination of officials other than governor and “state officers”.

I concur in the decrees.

McCALEB, Justice

(concurring).

I am in accord with the result reached in these cases but, since my views are somewhat different from those expressed in the main opinion, I deem it appropriate to briefly state them.

R.S. 18:355,. 18:356, 18:357 and 18:358, .which are quoted in the majority.opinion, are counterparts of Sections 76, 77, 78 and 80 of Act 46 of 1940, formerly the Primary Election Law, which was placed in the Revised Statutes as, Chapter 2 of Title 18, Sections 281-382. That Act specifically provided by Section 79 that there would not be a second primary for State Officers in the event a candidate for Governor was nominated in the first primary and the other sections of the Act, especially those involved herein, were couched in terms conforming to that provision.

In 1944, the Legislature attempted to change the law providing for nomination of a State Officer .by plurality in case there was no second primary for Governor and, to effectuate this purpose, Section 79 of Act 46 of 1940 was' repealed by Act 60 of 1944. However, it is manifest to me that the repeal of Section 79 did not accomplish the desired object for it left untouched all of the other sections of the Act pertaining to the holding of second primaries which sections, as I have above pointed out, were worded so as to be in keeping with the original purpose of the Act, i. e., that candidates for State offices would be nominated by plurality in case a second primary for the nomination of a candidate for Governor was unnecessary. Consequently, since there is no provision contained in the applicable sections of the Revised Statute's which make it mandatory for the State Central Committee to hold a second primary, the courts are without power to coerce it to do so.

On the other hand, I cannot subscribe to the opinion of the majority that the provisions of R.S. 18:358 (formerly Section 80 of Act 46 of 1940) apply only to the holding of second primaries for local officers and I think the Louisiana Law Institute committed error in attempting to thus limit the scope of the section in its caption. Indeed, it takes no more than a casual inspection of R.S. 18:355, 18:356, 18:357 and 18:-358 to perceive that the latter section applies to the holding of second primaries for all officers (State, District and Local) save only those State Officers who are voted on throughout the State and are nominated at the same time as a candidate' for Governor. The reason why those State Officers are necessarily excluded from R.S. 18:358 is that they are specifically included in R.S. 18:356 and 18:357, providing for a second primary for Governor and other State Officers and the method of holding such primary. But, surely, second primaries for all other State Officers and District Officers are plainly covered by R.S. 18:358 and the caption thereof, indicating that it is restricted to Local Officers, is obviously not in conformity with its- provisions.

I concur in the result.

      . Act 61, Extra Session of 1921, now LSA-R.S. 18:1071 et seq., wherein the Secretary of State is required to furnish the clerks of court of the district courts of the respective parishes and the civil sheriff of the Parish of Orleans, fifteen days prior to a special primary or general election, a sufficient number of printed ballots for each precinct in the parish for absentee voting.

      . In State ex rel. Rosenstock v. Democratic Municipal Executive Committee of Town of Westwego, Parish of Jefferson, 197 La. 469, 1 So.2d 697, involving a mandamus proceeding to compel the committee to comply with a provision of our Primary Election Law, and it being obvious that the remedy of appeal would prove inadequate, due to the time limit for final adjudication, we therein exercised our supervisory jurisdiction.

      . Respondents Gremillion and McOrory also filed individually an exception of mis-joinder of parties defendant, which was neither argued nor presented in their brief, and which we have considered as waived.

      . Act 46 of 1940.

      . As .used in the statute, the term “State Officers” is obviously limited to those officers who run statewide in the same primary election' at which a candidate for Governor is nominated.

      . The marginal caption of Section 80 of Act 46 of 1940 reads simply “Second primaries” thus covering all such primaries except second primary elections for Governor and other State Officers.

      . Supreme Court Justices, Public Service Commissioners and others whose jurisdiction is statewide.

      . Judges of the Courts of Appeal (see McCall v. Regan, 214 La. 254, 36 So.2d 830) State Tax Collectors and the like (see State ex rel. Carbajal v. Looney, 154 La. 457, 97 So. 657).


source: Caselaw Access Project

author: FOURNET, Chief Justice.

license: Public Domain

text:
    229 La. 581
    SOHIO PETROLEUM COMPANY, Sun Oil Company, v. Dr. Martin O. MILLER.
    No. 42186.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Wilkinson & Wilkinson, .New Orleans, Jennings B. Jones,. Jr., Cameron, Lestage & Arnette, Jennings, for defendant and appellant.
    Liskow & Lewis, Lake Charles, Joiner Cartwright, Henry Lastrapes, Jr., Beaumont, Tex., for appellees.
   FOURNET, Chief Justice.

The Sohio Petroleum Company and the Sun Oil Company, joint holders and owners of a certain oil, gas and mineral lease dated July 18, 1945, executed by Dr. Martin O. Miller to the latter company and being operated by the former, having received a letter dated November 24, 1953, addressed to them by their lessor for the purpose of placing his lessees in default, wherein they were requested to commence development operations within sixty days or be considered in default of their lease obligations, on January 7, 1954, instituted proceedings in the District Court, alleging that the said notice was defective in that it declared that there had been mo development for over a year prior to its date when in fact on July 16, 1953, a well had been commenced which was drilled to a depth of 8,505 feet and upon failure to produce oil and gas in paying quantities was abandoned, less than four months prior to the date of the letter, so that the fact relied on as constituting a breach of the lease — which, under the terms of the lease contract, had to be set forth in the notice — was an erroneous statement and the letter was insufficient to serve as a demand for further development or as a notice of default; and sought judgment declaring that defendant has no right, based on the said letter, to contend that plaintiffs have failed to develop the land in compliance with the lease requirements, or, in the alternative, declaring that plaintiffs have a reasonable time within which to commence the operations necessary to maintain the lease in effect. Defendant’s answer, although admitting the erroneous statement in the letter and acknowledging that a well had been drilled in July, 1953, nevertheless denied that the development at that time was reasonable and in accordance with the contract, and in recon-vention asked for cancellation of the lease; he prayed that the plaintiffs’ demands be rejected and, as reconvenor, that the lease be declared of no further effect and ordered cancelled in toto, or, alternatively, can-celled as to property which was not productive of minerals, or, in the further alternative, cancelled insofar as it bore on tracts 3, 5, 6 and 7, or any one or more of those tracts. Judgment was rendered on the face of the pleadings upon plaintiffs’ motion, and in accordance with the prayer of their main demand — from which judgment the defendant prosecutes this appeal.

The lease with which we are here concerned originally covered some 3,408 acres of land belonging to the defendant located in Cameron Parish and comprising seven separate parcels, some of which were adjoining but were non-contiguous to others; these were described in the lease as individual tracts, each designated by number, with indication of its acreage in round figures, these being Tract No. 1, 2,100 acres; Tract No. 2, 240 acres; Tract No. 3, 530 acres; Tract No. 4, 162 acres; Tract No. 5, 38 acres; Tract No. 6, 160 acres; Tract No. 7, 178 acres. The lessee Sun Oil Company transferred an undivided half interest to Sohio Petroleum Company and during the primary term of the lease, extending to July 28, 1951, it was maintained by rental payments and shut-in gas well payments, a well having been drilled in February, 1950, within Tract No. 4 and shut in as a gas well capable of production. That was the first drilling effort on any of the lands covered by the lease; it was designated the “M. O. Miller B-l” well, and in November of that year (1950) a drilling unit of almost 500 acres was established around the well but included only some 107 acres of the leased property (fractions of Tracts 3 and 4). At the same time another unit of similar size was formed around the discovery well of the field, known as the “Richard Unit Well No. 1,” completed some three years previously on land adjoining lessor’s Tract 2; of the leased acreage, that unit affected about 168 acres in the said Tract 2. Both wells were then placed on production, have continued to produce since that time, and the defendant has been paid royalties under the lease in the proportion of his fractional interest in the total acreage of each unit.

Two more drilling attempts were made, both unsuccessful; the first of these, an exploratory well to a depth of 8,511 feet, was drilled in September, 1952, by a sub-lessee of the lessees, within Tract 3, and was abandoned as a dry hole in October of that year; the last, the well commenced in July, 1953, mentioned earlier in this opinion and located within Tract 2 of the leased premises, was likewise abandoned. There has been no drilling on Tracts 5, 6 and 7 since the execution of the lease.

Paragraph 9 of the lease, dealing with breach by lessee of any obligation arising thereunder, provides in part: “ * * * In the event that Lessor considers that operations are not at any time being conducted in compliance with this lease, Lessor shall notify Lessee in writing of the fact relied upon as constituting a breach hereof, and Lessee, if in default, shall have sixty (60) days after receipt of such notice in which to commence the compliance with the obligations imposed by virtue of this instrument. Neither notice nor attempted compliance shall be evidence that a breach has occurred. After discovery of oil, gas or other mineral in paying quantities on said premises, Lessee shall reasonably develop the acreage retained hereunder, but, in discharging this obligation, it shall in no event be required to drill more- than one well per forty (40) acres of the area retained hereunder and capable of producing oil, gas or other mineral in paying quantities.” ’ ...

The lessor’s letter of November 24,-1953, after referring to the mineral lease of July 18, 1945, continued: “I have recently received knowledge of your release of certain of these lands. However, you are still retaining several different tracts by reason of the extension of the term of the lease through my unitized interest in the two gas wells in Section 12, T. 15 S., R. 5 W., and Section 1, T. 15 S., R. 5 W. The said wells in Sections 1 and 12 were completed as long ago as October, 1950. Since that time you have drilled but one well on my said lands held under said lease. That well was located in Section 11 and was drilled under a restrictive covenant, as I understand it, whereby exploration was limited to ;a prescribed depth. It was plugged and abandoned on October 9, 1952. Now, for over a year you have done nothing to develop this lease. For that reason I believe you are violating the obligation of the lease to develop same after initial production. I particularly regard as such a breach of this lease your failure to explore for minerals anywhere in that area south of Grand Chenier Ridge comprised of a 160 acre tract [No. 6] and a 178 acre tract [No. 7] belonging to me, being located in * * *. This letter is intended as the required 60 days notice as provided for in our contract, calling upon you to resume development operations within such period, or be considered in default of your lease obligation.”

The district judge concluded, in view of the admission in the pleadings that a well had been drilled in July, 1953, that the fact stated as constituting a violation of the lessees’ obligation to develop after initial production was untrue; therefore the letter of November 24, 1953, did not and could not serve as notice to the lessee in accordance with the terms of the lease and lessor has no right,'based on the letter, to contend that the lessees have failed to develop in accordance with-the requirements of the lease.

.In this we think the trial judge was in error. While it is true that the letter, in addition to detailing the lessees’ operations under the lease (except for the one omission), contained the statement that it had been more than a year since any development had taken place, when in fact a well had been drilled in July and abandoned early in August, 1953, within four months of the date of the letter, that of itself does not necessarily render the notice ineffective, because the lessees are notified therein of another “fact relied upon as constituting a breach” of the lease; the lessor states: “I particularly regard as such a breach of this lease your failure to explore for minerals anywhere in that area south of Grand Chenier Ridge.” Whether or not the failure to so explore — if in fact no such exploration has taken place — constituted a breach of the obligation to “reasonably develop the acreage” (paragraph 9 of the lease), is a matter which addresses itself to the merits of the case when, after the introduction of all the evidence, it can be determined whether or not under the terms of the lease there was a reasonable development of, the acreage as a whole or with respect to any of the several parcels.

For the reasons assigned, the judgment of the district court on the pleadings, declaring that the letter of November 24, 1953, directed to plaintiffs by defendant, “did not set forth a fact which could be relied on as constituting a breach of the oil, gas and mineral lease described in said petition” and that it was not sufficient to serve as notice under Paragraph 9 of the lease or as a basis for the cancellation of the lease, is reversed and set aside, and the case is remanded for trial on the merits, to be followed by such judgment as the evidence will warrant. Costs of this appeal to be paid by the plaintiffs-appellees;, all other costs to await the final- determination of this case. '

      . The plaintiffs also alleged, but in the alternative and only if it be held that the letter was sufficient to serve as the sixty day notice provided for in paragraph 9 of the lease, that they are nevertheless not required by the terms of the contract to conduct any additional drilling operations on the, lands for the reason that (1) there had been production of minerals in paying Quantities under the lease continuously since October, 1950; (2) there were no producing wells on lands adjoining those of defendant so as to necessitate the drilling of offset wells; (3) the drilling of any additional well would be exploratory and speculative, according to the then available information and data.

      . For a clear understanding of the location of these tracts with respect to each other, reference is made to a plat attached to the brief of defendant-appellant, the original being on file with the record in this case.

      . It appears that early in 1952 the lessor filed suit to cancel the lease, but since he had failed to first serve notice on the lessees as. required by the lease contract he caused the suit to be dismissed, following which he wrote them a letter, dated July 28, 1952, in which he stated:
      “At the hearings before the Louisiana Conservation Commission during October and November of 1950 (relative to establishment of said units) it was made abundantly clear that reasonable development of my lands leased to 8un Oil Company required the early drilling of additional wells thereon.
      “Thereafter throughout the year 1951 no such reasonable development was proceeded with or initiated in any way. Hence the present controversy and lawsuit between us.
      “To me it is indefensible that you should attempt to hold and tie up, to my disadvantage and not even to your own advantage, the relatively extensive tracts of lands originally involved in this lease. Moreover, it is incomprehensible to me thát you should find any support from the law in your veritably malicious position in this matter. Eventually I am confident that our courts will censure and grant reparation for such oppressive dealings as have been carried on by you in this instance.
      “At the moment, however, I am acutely aware of the legally technical inadequacy of the suit I had filed against you, and it is the purpose, of this letter to eliminate same. I have directed my attorneys to withdraw said suit immediately. I am now giving you formal notice hereby that I consider that operations are not being conducted by you in compliance with this lease, to-wit: You are failing to reasonably develop the acreage retained under the lease, having already made an initial discovery of gas in paying quantities. I therefore demand that you resume operations to develop same. I particularly designate my leased lands in Section Eleven, Township 15 South, Range 5 West [Tract 3] as having been unreasonably neglected by you and demand that you begin and proceed with the drilling of a well on said lands in said section within the next sixty (60) days.”

      . The reference is to Tract No. 1, which was surrendered and release from the lease in 195S — obviously as a result of the letter quoted in footnote 3, supra.

      . The area south of Grand Chenier Ridge is that in which lie Tracts 6 and 7, these being on, the opposite side of the said Ridge from the Richard and Miller wells and more than two miles distant therefrom, as well as from the two dry. holes drilled in July, 1953, and September, 1952, within tracts 2 and 3 respectively.


text:
    229 La. 592
    Peggy CORKERN v. TRAVELERS INSURANCE CO. et al.
    No. 42524.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Blanchard & Blanchard, C.-A. Blanchard,' F. A. Blanchard, Donaldsonvillé, for plaintiff and relator.
    J. Y. Gilmore, Leonard C. Wise, Morgan City, Bauer & Bauer, Franklin, Adams & Reese, New Orleans, for respondents.
   FOURNET, Chief Justice.

We granted certiorari in this case to review the judgment of the Court of Appeal, First Circuit, reversing the judgment of the trial court in favor of the plaintiff, Peggy Corkern, and dismissing her suit against The Mayor and Council of Morgan City, the W. D. Owens Construction Company, principal contractor in the construction of a natural gas transmission line being installed by the town, the Smith-Sweger Construction Company, the subcontractor actually performing the digging operations, and their respective public liability insurers, Travelers Insurance Company, United States Fidelity and Guaranty Company, and Bituminous Casualty Corporation, in soli-do, to recover damages for personal injuries sustained while using a pathway prepared by the employees of the subcontractor to cross a sidewalk where excavation work was being carried on. See Corkern v. Travelers Insurance Co., La.App., 80 So.2d 885, 887.

It appears that at the time of the accident the gas line was being installed on Railroad Avenue, a business district of Morgan City, in the block between First and Front Streets, and the eleven-foot wide sidewalk on one side of the street had been broken with an electric drill the length of the block about three feet from the curb for a strip two feet in width, leaving an unbroken section approximately six feet wide bordering the doorways of business establishments fronting on the sidewalk. At the request of Mr. Shepard, owner and operator of Shepard’s Radio Shop located in the middle of the block, a pathway was left from his doorway to the curb for the convenience of those alighting from automobiles. From First Street to Shepard’s entrance the broken concrete and dirt had been dug out to form a trench some three feet deep, and broken pieces of concrete were scattered about; from Shepard’s entrance to the Front Street corner, the cement had been broken but no excavation had yet been made. About 5:15 p. m. on December 2, 1949, while still daylight, the plaintiff parked her car nearby and alighted with the intention of entering Shepard’s radio store to have repaired a small table radio which she carried, and in attempting to use the above-mentioned pathway she stepped upon a piece of concrete which thereupon turned on its end, causing her to be thrown to the ground with force and resulting in a fractured dislocation of the right' ankle.

For cause of action plaintiff relies on the fact that the space had been purposely left as a passage way for the convenience of people who desired to enter Shepard’s store from the street, but that the work had been carelessly and unskill fully done so that the path, while appearing to be safe and firm, was in fact a trap in that the stones were not firmly set or anchored. The defense was a general denial, and an alternative plea of contributory negligence on the part of the plaintiff.

The trial judge, in a well considered opinion in which he carefully analyzed the facts and cited pertinent jurisprudence, concluded that the pathway constructed by the subcontractor was an invitation to the public to make use thereof, and they had a right to rely on its being safe; but in fact it was constructed without skill or care in that the large broken pieces of cement placed over the dirt passage were not well anchored or made secure, and it was in fact a trap hiding a dangerous condition— as exemplified by the accident in this case; and in disposing of the plea of contributory negligence we think properly observed that “Certainly she cannot be charged with lack of observation, nor that she was not looking where she was walking. Had these fragments of concrete' and cement been stationary, as they should have been, she was not negligent in attempting to do what she did, and undoubtedly she believed that these fragments' were anchored and placed there as stepping stones for the use óf pedestrians.”

The Court of Appeal agreed with the trial judge’s summary of the applicable law concerning liability, and after summarizing his holding, commented: “We greatly respect the opinion of the trial court, but in view of the fact that the overwhelming preponderance of the evidence indicates that these loose concrete pieces were visible by ■ordinary prudent observation, we must respectfully disagree with his conclusion that such pathway constituted a trap; or at least that the plaintiff was not contributorily negligent in failing to observe the dangerous condition of this pathway, but nevertheless proceeding across it carrying an awkward table radio, which obscured her vision below.”

Our appreciation of the evidence fails to disclose that plaintiff’s vision' was in any wise obscured by the table radio She was carrying at the time of the accident; and whether the pieces of concrete were somewhat embedded in dirt and sand, presenting the appearance of stepping stones “placed there to be stepped on,” as found by the trial judge, or whether, as found by the Court of Appeal, “the pieces of concrete composing the path were visible and uncovered by any sand” is of no importance because, as found by the trial judge, the very purpose of the path was to allow Shepard’s customers who came by automobile to cross into his establishment from the street; and in the absence of a warning of danger in the use of the passageway, pedestrians having occasion to traverse it would naturally assume, and had a right to assume, that it was sufficient for the purpose, subject only to such imperfections as might be readily observed by use of ordinary care, and that the concrete pieces were to be stepped on in negotiating the passage. See Allen v. Town of Minden, 127 La. 403, 53 So. 666; Rock v. American Const. Co., 120 La. 831, 45 So. 741, 14 L.R.A.,N.S., 653; Burke v. Werlein, 143 La. 788, 79 So. 405.

Counsel for plaintiff call to our attention the fact that thé trial judge in his judgment made specific awards for pain and suffering, $6,000, for disfigurement and blemishes, $1,500, for loss of time and wages, $480, for medical and hospital expenses, $1,331.41, which amounts aggregate $9,311.41, but gave judgment for only $8,-311.41, which they claim was an error in addition, and ask that we make the correction here. While the error complained of is obviously one of calculation we are powerless to correct it as the plaintiff neither asked for a correction in the lower court, nor did she appeal from that judgment or answer the defendants’ appeal to the Court of Appeal. Betz v. Riviere, 211 La. 43, 29 So.2d 465.

The defendants, on the other hand, claim that the award was excessive in all respects; they complain especially that as to the figure of $1,331.41 covering medical, hospital and incidental expenses, the plaintiff having been a minor when these expenses were incurred, not having been judicially emancipated until just prior to filing of this suit, her father, if living, or otherwise her mother, was responsible for such expenses and therefore the only person entitled to a right or cause of action for such damages — citing in support the case of Ashey v. Kolb, La.App. 1 Cir., 9 So.2d 865. A perusal of that case readily discloses that it is not apposite from a factual standpoint and is therefore not persuasive. As to the other items of damages, we are not disposed to reduce them because the facts of the case fully warrant the award made by the trial judge.

For the reásóns assigned the judgment of the Court of Appeal, First Circuit, is reversed and :set aside, and the judgment of the district court is affirmed; all costs of the appeal in this Court to be borne by the defendants.

      . Smith-Sweger. Construction Co. and its insurer. Bituminous Casualty Corporation, concede that the other parties de-fondant -would be entitled to a judgment over against them'in the event of such other parties being c'ast ’in judgment.

      . The accident resulted in fracture of the bones of plaintiff’s right ankle and severe dislocation of the ankle; some five days after the ankle had been set and a east applied, the cast had to be removed; the ankle was again broken, reset, and again placed in a cast which plaintiff wore for a period of two weeks. Because progress was unsatisfactory, plaintiff was then sent to an orthopedic surgeon in New Orleans who performed two surgical operations in Baptist Hospital, wliich op- ■ erations included the insertion of three screws for a proper alignment and healing of the broken bones, and later, the removal of the screws. Altogether a period of 23 days was spent in hospitals, two months were spent on crutches, and at the time of trial painful discomfort still resulted from prolonged use of the right leg, as in dancing or walking long distances.


author: •FOURNET, Chief Justice.

text:
    229 La. 600
    STATE of Louisiana v. Jasper BRAZILE.
    No. 42646.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      C. F. Gravel, Jr., Grove Stafford, Jr., Alexandria, for defendant-appellant.
    ' Fred S: LeBlanc, Atty. Gen., M.- E. Culligan,, Asst. Atty. Gen., Ben F. Thompson, Dist. Atty.,, A. M. D’Angelo, Asst. Dist. Atty., Alexandria, for appellee.
   •FOURNET, Chief Justice.

The defendant, jasper Brazile, was jointly indicted with one Ruby- Johnson for the murder of Floyd Lee Drewett; on appeal irony their conviction, the verdict was annulled and set aside and the case remanded by this Court on the finding that denial of the motion of each to be represented by individual counsel, (following appointment of one attorney to represent both defendants) was error in view of the .claim. of antagonistic statements by the co-defendants allegedly prejudicial to their respective interests. See State v. Brazile, 226 La. 254, 75 So.2d 856. The trial court thereupon granted a severance; the defendant was again convicted and sentenced to death, and prosecutes this appeal. Although 23 bills of exception were perfected, several were apparently abandoned as defendant presented only ten in his argument as constituting reversible error.

Bills of Exception Nos. 1, 5, 10, 13 and 14 were-based on-the refusal of the court to, excuse prospective jurors L. B. Henry, Earl Carroll, Dewey Dunn, Milton Greer, and W. T. Durham, for cause — the first four because they had formed an opinion as to the guilt or innocence of the accused, and the last named .because he .was said to be a lifelong friend and neighbor of the deceased..

As pointed out by the author of this1 opinion-as tlie organ of the Court in the case of State v. Henry, 200 La. 875, 888, 9 So.2d 215, 219, “It is specifically declared in the Code of Criminal Procedure that a partial juror may be challenged for cause ‘but an opinion as to guilt or innocence of the. accused, which is not fixed, or has not been deliberately formed, or -that would yield to evidence, or - that could .be changed, does not. disqualify the ju.ror/ Article-351.; It is only where a prospective juror.’s.opinion,as to the guilt or innocence of the accused is so fixed that it would in-fiuence his verdict that he may be con-sidefed disqualified because of such opinion and challenged for cause. * * * Even though he has formed an opinion as to the guilt or innocence of the accused from discussions participated in or from reading about the same in the newspapers, the prospective juror is competent if, having no prejudice against the accused, he can lay aside that opinion. Particularly is this so where he states under oath that he is able to and will try the case only on the evidence adduced during the course thereof. * * * Furthermore, a prospective juror’s competence or incompetence cannot be limited to isolated answers given during the course of his examination. It must be judged from his entire examination. * * " (Italics ours.)

An examination of the entire evidence annexed to the respective bills we think clearly supports the trial judge’s conclusion that the first four jurors mentioned above met the foregoing test, and therefore the exceptions were properly overruled.

We think that the trial judge also correctly ruled that juror W. T. Durham was not disqualified to serve in this case* because, as .státed in his per curiam, a reading of the juroris entire examination clearly shows that the relationship between him and the deceased was not such as to lead to a reasonable belief that it would influence the juror in coming to a verdict for or against the accused.

The next bill argued by counsel, Bill of Exception No. 4, was reserved when the prospective juror Robert Johnson was being tested as’ to his qualifications; he having previously answered that he could read and write and had a seventh grade education, counsel for the defendant announced to the court that he wanted to probe the juror on that phase of the case and handed him a document, asking him if he could read it, to which counsel for the State objected "on the ground that it was improper examination/’ and the objection was sustained by the trial judge. (Emphasis supplied.)

One of the several qualifications specifically set out in the Code of Criminal Procedure (now Chapter 1, Title 15, Revised Statutes) to be met in order to serve as a grand or petit juror in the courts of this State is that the person be "able to read and write the English language,” LSA-R.S. 15:172, the lack of which qualification is a cause for challenge, LSA-R.S. 15:350; and the time for urging the incompetency of a juror, from whatever cause, is “before the juror is sworn in,” LSA-R.S. 15:355 or the objection to the person, though good cause for challenge, will be considered as waived. State v. Bryan, 175 La. 422, 143 So. 362; State v. Robinson, 37 La.Ann. 673; State v. Harris, 30 La.Ann. 90; State v. Nolan, 13 La.Ann. 276; State v. Kennedy, 8 Rob. 590; see 35 C.J. 364, Verbo Juries, Sec. 4041/2; 50 C.J.S., Juries, § 251. For the purpose of ascertaining the qualifications of a prospective juror the defendant is accorded the right of examination, LSA-R.S. 15 :357, such examination to “be conducted in the manner as now provided by existing laws”, LSA-R.S. 15:349.

The purpose of allowing chal-ylenges for cause is to secure a fair and impartial trial and the right exists independent of any statutory provision since it is an incident of the trial by jury. The Legislature, in adopting those provisions of the Code of Criminal Procedure treating of that subject, merely codified the law in existence at the time of the adoption of the Code as a.means of readily securing to the accused a fair and impartial trial by jury, as guaranteed by the Constitution. Hence the rule, universally obtaining, that the defendant has the right to have jurors examined as to their qualifications for the purpose of showing grounds for challenge for cause, and also, within reasonable limits, to elicit such facts as will enable him intelligently to exercise his right of peremptory challenge, and it is error for the court to exclude questions which are pertinent for either purpose. 35 C.J. 386, 387, Verbo Juries, Secs. 432, 434; 50 C.J.S., Juries, § 273; State v. Henry, 196 La. 217, 198 So. 910; State v. Guidry, 160 La. 655, 107 So. 479. In the latter case the Court very aptly observed: “In order to intelligently exercise the right [of challenge], an accused is entitled, through his counsel, to a reasonable examination of the juror to ascertain the facts as to his competency. * * * ” 160 La. at page 659, 107 So. at page 481; and, irrespective of the fact that the defendant in that case had not exercised the challenges which the law accords and therefore was not deprived of any peremptory challenge, the Court nevertheless held that the ruling of the trial judge was violative of the right of accused to challenge jurors and constituted reversible error.

'We agree with the statement of counsel for the 'State that the question of a juror’s qualification is addressed to the sound discretion' of the trial judge. His ruling is, however, subject to review; and while it will be sustained unless the discretion allowed him. is shown to have been unwisely exercised, nevertheless considerable latitude must of necessity be allowed in the examination of jurors and the trial judge is without right to unduly curtail that examination.

The examination of the prospective juror Robert Johnson, in our opinion, was proper, for we can conceive of no better method of determining a person’s ability to read and write than to subject him to the test. We cannot, therefore, approve the reasoning of the trial judge that it was highly improper for defense counsel to have submitted to, the juror the document to test his ability to read simply because it was unidentified. While it may have been better .practice- for the document to have been first handed to the district attorney or to the judge, before 'presenting it to the prospective juror, we know of no law that requires such action — and counsel was not requested to submit it to the district attorney or to the judge at the time of the ruling. The note of evidence is unfortunately limited, affording us imperfect means of determining whether or not the juror was in fact qualified; the record does show, however, that the juror was later excused by the defendant, forcing him' 'to use on,e of the peremptory challenges which he is accorded by law; and that, having exhausted all of his peremptory challenges, defendant was compelled to accept a juror obnoxious to him. He is therefore entitled to have the conviction set aside and to be given a new trial.

Having reached this conclusion it is unnecessary to consider the other bills of exception as they will probably not be presented in a new trial.

For the reasons assigned, the conviction and sentence are annulled and set aside, and the case is remanded for a new trial in accordance with law.


author: TATE, Judge.

text:
    Willard M. MITCHELL and W. M. Mitchell, d/b/a W. M. Mitchell and Son, Plaintiffs and Appellees, v. C. A. MARTIN, Defendant and Appellant.
    No. 4171.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      ‘ Louis J. Ourso, Jr., Hammond,' for appellant.
    Edw. B. Dufreche, Ponchatoula, for ap-pellees.
   TATE, Judge.

No appearance has been made before this Court on behalf of defendant-appellant, either by brief or in person. It is therefore presumed • that the appeal has been abandoned, and it will accordingly be dismissed, Falcon v. Falcon, 224 La. 938, 71 So.2d 334; Peace v. Love, 223 La. 772, 66 So.2d 803; Bains v. Kenneson, La.App. 1 Cir., 16 So.2d 555; Succession of James, 1 Cir., 1 La.App. 354; Johnson v. Montgomery, La.App. 2 Cir., 84 So.2d 213; see Grandmougin v. Green, 1 Cir., 17 La.App. 49, 135 So. 259.

Appeal dismissed.


author: ELLIS, Judge.

text:
    Sid WADSWORTH v. John S. DEMARCO.
    No. 4176.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Louis J. Ourso, Jr., Hammond, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

Appellant did not appear either in person or through counsel when this case was called for argument and has' filed no brief. Having failed to appear, or.file a,-brief, it is presumed that the appeal has been abandoned and it will accordingly be dismissed. See Falcon v. Falcon, 224 La. 938, 71 So.2d 334; Peace v. Love, 223 La. 772, 66 So.2d 803; Johnson v. Montgomery, La.App., 84 So.2d 213.


text:
    AETNA CASUALTY & SURETY CO., Automobile Insurance Company, Substituted Plaintiff, v. Troy CROW.
    No. 4195.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Gordon Goodbee, Covington, for appellant.
    Reid & Reid, Hammond, for appellee.
   ELLIS, Judge.

Plaintiff brought this suit as subrogee of Vincent Dantoni, whose automobile was involved in an accident on U. S. Highway 190 between Ponchatoula and Madison-ville, Louisiana, with a log truck owned by defendant Troy Crow.

It was admitted at the time of the trial that Automobile Insurance Co. was the true plaintiff rather than Aetna Casualty & Surety Co., and should a judgment for plaintiff be granted that it be rendered in favor of the former.

Judgment below was in favor of the plaintiff as prayed for and from this judgment the defendant has appealed.

The petition herein alleges that the defendant was driving his log truck in an •easterly direction along U. S. Highway 190 and at ■ the same . time, plaintiff’s insured was driving his car in the same direction; that as the insured vehicle approached the log truck from the rear -he steered his car into the left lane of the highway in order to pass the truck but just as he was about to complete this maneuver the defendant, without any warning, attempted to make a-left turn across the left lane of the highway in order to. turn into a small road that came into the highway upon defendant’s left; that the insured vehicle tried to pass aroünd the truck but was unsuccessful and the right front fender of his-car hit the left rear wheel of the log truck;- which 'resulted in the damage to the insured automobile. -

Further allegations charge the defendant with gross negligence in attempting to turn left across the public highway, giving no signal of his intention, and not making sure the highway was clear to allow such a maneuver; that the insured car was being driven at a reasonable and proper rate of speed and that he was guilty of no negligence whatsoever.

The answer denied any acts of negligence .on the part of the defendant and alleged that he signalled his intention to make the turn, but that the insured was negligent in that he was driving at an excessive rate of speed, not keeping a proper look-out, and attempting to pass the defendant at an intersection, and failing to bring his car to a stop when he saw the defendant’s signal to turn to the left. Contributory negligence was also plead.

The lower court, with written reasons for judgment, found that immediately prior to the collision the defendant was proceeding in an easterly direction and that a Mr. Stanga was seated beside him in the cab of the truck and that when he gave the signal for the left hand turn he did not give it in time to warn the insured, who was approaching from his rear, of his intention to turn, and that at the time the signal was given the following car could not have been more than 100 feet from the truck.,. These reasons also found the ■defendant showed he had seen the car following in the rear and he, himself, set the speed at about 70 miles per hour. From this evidence the court concluded the defendant was guilty of gross negligence in making the left turn across the highway even though he had signalled just, when he started to turn. Further, the lower court notes that Stanga testified that the defendant gave a signal and immediately something hit the back of the truck. The court below found that- the signal was given by the defendant at a time when it was of no avail to the insured. Further, he found that the highway was straight at the scene of the ¡accident and that the insured was traveling at a- rate of speed of from 55. to 60 miles per hour, which, under the circumstances, was not excessive, and concluded that the proximate cause of the accident was the sole negligence' of the defendant. It was further found that the insured skidded his car a distance of some 80 or 90 féet but was unable to bring it to a stop and avoid the collision; that the weather was dry and clear.

The amount of damages to the insured automobile was admitted and the only reason urged for reversal is that the lower court erred on a question of fact.

This case is somewhat similar to Messina v. Audubon Insurance Co., Inc., 67 So.2d 143, 146, decided by this Court. There in we stated:

“The lower court held the failure of Duchan to exercise the necessary precautions in making a left turn to be the proximate cause of the accident. We fail to find any error in this decision of the lower court. Under the circumstances, the speed of Messina, 50 to 55 miles per hour was not excessive, as they were proceeding along a dry paved highway during daylight. At the time the turn was commenced by Duchan, Messina immediately applied his brakes and attempted to avoid the collision by pulling to the left. Although the accident might have been avoided had he turned to the right, we can only hold him to what a reasonable man would have done under the emergency, and the evidence does not show that his actions were unreasonable. If Duchan did hold out his hand to indicate a left turn, as some of the witnesses testified, he did not do so until he was ready to commence the turn, and was negligent in failure to exercise the precautions for making such a turn as is required by law.”,

The case of Sullivan v. Locke, La.App., 73 So.2d 616, cited Louisiana Statutes Annotated Revised Statutes 32:236 and held that one attempting a left hand turn upon the highway is charged with the responsibility of being certain that this maneuver can be made in safety and without danger to normal overtaking traffic.

The judgment of the lower court is affirmed.


author: •LÓTTINGER, Judge.

text:
    Wallace G. BUTLER v. LUMBERMENS MUTUAL CASUALTY COMPANY et al.
    No. 4163.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Sanders, Miller, Downing, Rubin & Kean, Baton Rouge, for appellant.
    Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellee.
   •LÓTTINGER, Judge.

Petitioner filed this suit against Robert Lee Clark and Lumbermens Mutual Casualty Company, the insurer of Clark’s em-’ ployer, for total damages of, $26,879.30, consisting of property, damages and personal damages to petitioner and his wife which resulted from an accident between an automobile belonging to petitioner and driven by him, and a truck being driven by defendant Clark. The Lower Court gave judgment for defendant, and the petitioner has appealed.

The facts show that at approximately 7:45 p. m. on the evening of July 14, 1953, Wallace G. Butler was driving an automobile east on the Baton Rougé-Hámmónd Highway. Mr. Butler was accompanied by Mrs. Butler and two' of his" relatives. As Mr. Butler approached a site about one mile west of the town of Livingston, he met two on-coming yehicles at a point approximately one-tenth of a mile east of the residence of Willard Andrew Hill. The first of said vehicles -failed to dim its lights, and Mr. Butler’s automobile ran into and collided with the left rear end of a truck and trailer loaded with logs. The truck and trailer was owned by Davidge Lumber Company and was being driven by its employee, Robert Clark. The Butlers sustained damages to their automobile and injuries to their person.

The evidence shows that some twenty-five minutes prior to the collision, and when at a point from one-half to a mile west of the scene of the accident, the defendant driver, Clark, was warned by. State Policemen that his rear, or tail, lights were not burning. Clark testified that he pulled off of the highway at his first chance, which was the Hill driveway located just west of the Hill residence, and repaired the lights. The only action necessary to repair the defective lights was for him to twist two wires together. He testified, and was corroborated by witness Windham, who was a passenger in the truck, that, after fixing the lights, lie reentered the truck and had driven some three or four hundred feet when he was struck in the rear by the Butler car. Clark’s testimony on, this score is contradicted by that of Mrs. Hill and Mrs. Honea who were both at their residences near the scene of the accident at the time of the impact. Mrs. Hill testified that the truck did not stop in her driveway. ■ Other than this she knew little of the accident, she being informed some ten to thirty minutes after seeing the truck pass her house that an accident had occurred down the road. Mrs. Hill claims that the truck was passing her house when the policemen pulled up alongside the truck and spoke to the driver. This apparently was to show the spot where the policemen warned the driver of his defective lights. At the time, Mrs. Hill was in her home, about one hundred, feet ba.ck from the highway, and it was dark enough to require lights. Yet she was certain that she saw the policemen talking- to the driver of the truck. .

Mrs. Honea testified that the truck stopped between her house and the Hill residence. She' stated that the truck started off again, and just a sécond later the impact occurred. We feel that Mrs. Honea was mistaken both as to distance and lapse of time, as will be shown by resume of the testimony of the two State Policemen and Mr. Martin.

■The two State Policemen testified that they pulled up alongside the truck and warned the driver of the defective lights at a distance of from one-half to one mile west of the point of impact. They knew nothing of the accident itself, however, upon investigating same after the accident, they both noticed that the tail-lights on the truck were burning.

Mr. Martin was approaching the scene of the accident in a westerly direction, and was just about even with the truck when the impact occurred. He entered the highway, from a side road, some distance east of the point of impact. According to his testimony, when he entered the highway he saw the Butler car about as far west of the log truck as he was to the east of it. He approximates the speed of the log truck to have been about five miles per hour, although he admitted that it could have been traveling about twenty or twenty-five miles per hour, as was testified by Clark and Windham. He and Butler arrived at the truck at the same time. As Butler and the log track were traveling east, Martin testified that the Butler car pulled out toward its left lane, apparently to pass the truck, and then swung back to its right, just a split second before the accident. It seems from this testimony that petitioner attempted to pass the truck, noticed that his way was not clear, and then swung back into his own lane, preferring a rear end collision with the truck rather than a. head on collision.

Mr. Martin was certain that the truck was proceeding along the highway from the time he entered same until the moment :of impact. Mr. Martin measured the distance he had driven on the highway prior to the impact, and found it to be a distance of .4 of a mile. It is apparent, therefore,, that the truck had not just pulled out from its stopped position when the impact occurred.

The conclusions, as found by the Lower Court, are as follows:

“This Court has studied carefully the actions of the truck driver immediately prior to the impact to see if he could be charged with negligence. Some time-prior to the accident, he had been warned by officers in a patrol car that his. rear lights were out. He stopped at the very earliest possible moment and fixed them. Just where he fixed them, or how long he had stopped, or whether he put out flares, is immaterial to this, case, since the best evidence is that he was back on the highway and had been for more than .4 of a mile, with his rear lights burning at the time of the impact. If he had waited until a more advantageous place to stop as suggested by plaintiff’s counsel, he would have subjected the traveling public to the danger of an unlighted vehicle for a. longer period of time, and if Mr. Butler had come along earlier and had run into the rear of the truck when it didn’t have rear lights burning, the negligence of the truck driver* could have been maintained even though he didn’t know his lights were out.
“Clark testified that when he pulled back onto the highway after fixing his lights, that the Butler car was just' coming around the curve, to the west behind him. Although he estimated the distance as 300 feet, he also .testified that it was behind him about- the same distance as Pope’s store in Livingston was ahead of him, and both of-these distances were each at least a mile, from the point of impact.
“All things considered, the court can see nothing the driver of the log truck -could have done to have avoided the accident, and believes that he did what an ordinarily prudent man would have done to avoid danger on the highway, and therefore, cannot - attribute to , him any negligence.
“Mr. Butler was traveling at a speed of from 40 to 45 mph. according to his own testimony, and this is borne out by the testimony of Martin who was’ coming toward him at 30 to 35 mph., covered a little less distance and arrived at the point of impact at about the same time.
“It has been given as a reason ydiy Mr. Butler did not see the red tail lights of the truck, that the truck lights were on the right side of the coupling instead of the left side, and that the truck was just starting up from a stopped position off the pavement and that the trailer was at such an angle that the lights did not show from the rear. In this connection the court b.e-, lieves the best .evidence shows that the truck was traveling when struck and that the slight ‘jack-knifing’ of the truck and trailer was caused by the impact.
“As to the position of ‘the'rear lights, the officer, Mr. Hoover, recalled that they were fastened to the rear axle immediately to the right of the coupling, and he further recalled telling the truck driver it would be,better to place them on the , left instead of the right. In conflict with this, Windham testified of helping Clark tack these lights to the longest log at the left of the load befoi:e they left the wqods. His testimony on this point- is .in detail, from pages 103 through 106 of the testimony. In either position, this court believes they were plainly visible for 500 feet tp.the rear, and, in the absence of any evidence that the l.og truck was o.f such width, as to require clearance lights,, .satisfied tire requirements of the, law.”

-We are not: able to1 find any manifest error -in 'the conclusions of 'the Lower Court; The undisputed testimony shows-that, three tail -lights were burning on the truck.. The greater amount of evidence shows that the truck had been traveling On the -highway for some period of time prior to the- impact. Why the petitioner did not see the 'truck until he was only ten feet from it, was probably ¿aused by the bright lights of the oncoming car which blinded him. If such was the case, he should have slowed his speed. Witnesses testified that the truck tail lights should have been visible for a distance of at least five hundred feet.

Under the circumstances, we do not feel that the truck presented a “sudden peril” or “trap” as is contended by the petitioner. There was no reason for' the petitioner’s failure to have seen the truck, or to reduce his speed when blinded by the lights of the approaching vehicle. We feel, as did the Lower Court, that the collision was caused by the petitioner’s own negligence.

For the reasons -hereinabove assigned, the judgment of the_. Lower Court will be affirmed, all costs of this appeal to be paid by petitioner. , . - -

Judgment affirmed.


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    M. L. GAINES, Plaintiff and Appellant, v. HARDWARE MUTUAL CASUALTY COMPANY, Defendant and Appellee.
    No. 4190.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Horace R. Alexius, Jr., Covington, for appellant.
    Alfred W. Spiller, Jr., Hammond, for ap-pellee.
   TATE, Judge.

Plaintiff Gaines appeals from judgment after trial dismissing his claim for $201.09 property damage caused when his car struck a truck stopped on the highway after dark.

The accident occurred on a straight stretch of open highway near Claiborne, La., just after dark. Both plaintiff-Gaines’s car and the truck owned by defendant’s assured were headed north. The right front of the Gaines car struck the left rear corner of defendant’s truck, moving the latter just 1-3 feet forward, and damaging it very slightly. Plaintiff’s 1947 car was a total loss. It had been raining hard earlier in the day, although not at the time of the accident.

Defendant’s truck driver testified that just before the accident he had stopped on the highway to let a car in front make a left turn, having signalled his intention by hand and by rear brake light. He further states that the taillights were burning both before and after the accident.

Plaintiff Gaines, who was riding as passenger in his own car, and Latil, the driver thereof, testified to a speed of 30-35 mph before the accident. They testified they could not see the truck until it was 30 feet in front of them because the black truck’s taillights were off, and it blended with the dark, wet black-top road. Latil unsuccessfully tried to miss the truck by swerving left when it loomed in front of him. Both Latil and Gaines admitted that although they saw the lights of an oncoming car in the distance, it did not interfere with their visibility.

In the absence of contrary finding by the District Court, a preponderance of the evidence indicates that the rear lights on the truck were off, or not clearly visible, especially because of the testimony of one, Chester Sharp, who had passed the truck a few minutes earlier on his way to get some ice cream, and on his return found the truck and the Gaines car after the accident. Sharp testified positively that there were no taillights lit on the truck on either occasion. Although another disinterested witness (Mooney) was called on behalf of defendant to prove the taillights were on, the sole effect of his testimony was that “A ‘small taillight way down underneath” was burning on the truck after the accident, when defendant’s truck driver and the occupants of plaintiff’s car were arguing whether it had been on or off at the time of the accident. We further note that the passenger in defendant’s truck was not called by defendant to testify, nor was any reason given for such failure to call him.

Under these circumstances, we feel that the stopping of defendant’s truck without taillights (or with taillights not visible) on the traveled portion of the highway at night, constituted negligence which was a proximate cause of the accident herein under the circumstances at the time thereof.

Ordinarily probably, the plaintiff, being a guest passenger, is not answerable for the negligence of his driver in these circumstances since he “is not required to keep a constant lookout for the dangers of the highway * * *, it being his right and privilege to place reasonable reliance upon the driver, in charge of the car for the exercise of the necessary care and caution.” Herget v. Saucier, 223 La. 938, 67 So.2d 543, at page 545; White v. State Farm Mutual Automobile Insurance Co., 222 La. 994, 64 So.2d 245, 42 A.L.R.2d 338. But, for certain, historical reasons, it is settled that as to third persons involved in an accident, the negligence of the driver is imputed to the owner of the car when he is- riding therein as that of an agent, and if a proximate cause of -the accident, will constitute contributory negligence barring recovery by the owner from the third party, Waguespack v. Savarese, La.App., 13 So.2d 726; Weitkam v. Johnston, La.App., 5 So.2d 582; Riggs v. F. Strauss & Son, La.App., 2 So.2d 501; see also Note, 12 La. Law Review 323; Pierrotti v. Huff Truck Lines, La.App. 1 Cir., 63 So.2d 886.

Thus, owner-passenger Gaines, plaintiff herein, is barred from recovery if any contributory negligence of his driver, Latil, was a proximate cause of this accident. ■ ■

We are informed that the District Court held that a proximate cause of the accident was the negligence of Latil in driving at a speed excessive under the conditions in force at the time of the accident of poor visibility, wet asphalt, and so that he was not able to stop within the range of his headlights; Geoghegan v. Greyhound Corporation, 226 La. 405, 76 So.2d 412; Louisiana Power & Light Co. v. Saia, 188 La. 358, 177 So. 238; Cooper v. Boudreaux, La.App. 1 Cir., 80 So.2d 873.

On the other- hand, plaintiff urges that this casé falls under the exception to this doctrine, where an oncoming motorist’s failure to perceive the object in his path is sometimes excusable when the object is difficult to see and so unusual or not reasonably to be anticipated, as not to alert the driver’s attention; Gaiennie v. Cooperative Produce Co., 196 La. 417, 199 So. 377; Gautreaux v. Orgeron, La.App. 1 Cir., 84 So.2d 632; Achord v. Great American Indemnity Co., La.App. 1 Cir., 68 So.2d 643, Buford v. Combs, La.App., 1 Cir., 50 So.2d 469.

Whether in a given instance the rear-end collision falls withiii the scope of the Gaiennie exception or not, depends upon all the'facts and circumstances of each accident. We are -unable' to say that the District Court’s determination is manifestly erroneous that this accident' was not within the scope of the Gaiennie exception. The record is deficient of any reason why the plaintiff’s driver did not obsérve the truck parked in its path except that it was black; for instance, why'the outline of the body or the cab of the truck was not shown by the headlights or noticeable ahead to the driver of the car.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed. Costs to be paid by plaintiff-appellant.

Affirmed.

      . However, as betWeen the driver and the owner-passenger, this imputation does not apply. McDowell v. National Surety Corp., La.App. 1 Cir., 68 So.2d 189, cer-tiorari denied 347 U.S. 995, 74 S.Ct. 867, 98 L.Ed. 1127; Hardtner v. Aetna Casualty & Surety Co., La.App., 189 So. 365, certiorari denied; see also McHenry v. American Employers Insurance Co., 206 La. 70, 18 So.2d 656.


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    Thomas C. JACKSON et al., Plaintiffs and Appellants, v. FIREMEN’S INSURANCE COMPANY et al., Defendants and Appellants.
    No. 4162.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.

      Reid & Reid, Hammond, for plaintiffs-appellants.
    Durrett & Hardin, Baton Rouge, for defendants-appellants.
   TATE, Judge.

This is a suit for damages caused by a rear-end collision on May 18, 1953. The-negligence of the codefendant insured is admitted for purposes of this appeal. The sole,matter for our attention is the quantum awarded by the District Court, which defendant-appellants urge is excessive. .Plaintiffs appealed devolutively seeking increase in said award.

Special Damages.

.. .Plaintiffs’ 1950 Mercury was damaged in the accident., .Plaintiff Jackson, husband, sued for this damage, although the car was registered in Mrs. Jackson’s name and she referred to it as her car.

Defendant suggests that therefore co-plaintiff Mrs. Jackson was the proper party to bring suit for what might be her personal property by manual gift, and — she not having prayed for such award — this claim should be non-suited. However, the property was acquired during the marriage, and. the evidence in the' record is not sufficient to rebut the presúmption that therefore it is community property, Article 2234, LSA-Civil Code, Succession of Le Jeune, 221 La. 437, 59 So.2d 446. Thus the husband properly sought recovery in hi-s name for this damage to community property.

The District Court awarded $694.12 property damage to this automobile. This is the average of two estimates of the cost of repairing said car prepared by Audubon Motors of Baton Rouge: ' (1) initial estimate of $958.05 made at request of plaintiff Jackson on May ’22nd, 1953; (2) subsequent estimate of $430.21 made at request of defendants’ adjusters orí-May 28, 1953.

Somewhat corroborative of the first or higher estimate is the repair estimate of another company in the amount of $967.41, and Jackson’s testimony that two months before the accident he was offered $1,800 trade-in for the Mercury, but after the accident he received only $1,025 in trade-in value from the same Company. The principal difference in Audubon’s repair estimates was that the first, or higher one, included replacement of a bent or twisted frame; while the second one merely involved straightening same, which Audubon’s estimator felt in many cases produced satisfactory results.

Of course, .repair estimates can properly prove property damage recoverable, even, though the repairs are not made, Woodward, Wight & Co. v. Douglas Public Serv. Corp., La.App. 1 Cir., 75 So.2d 896; Parr v. Rogers, La.App., 71 So.2d 659. Undoubtedly under the testimony herein it was within the discretion of the District Court to award damages based on the higher estimates, as including repair of all the damage sustained by Jackson’s vehicle, or on the lower estimate as also including only such necessary repairs (thus, in effect, holding, that the straightened rather than replaced frame would restore the automobile to its previous condition).

But it is apparent that, faced with such wide variance in the estimates and convinced that the latter was too low to repair adequately plaintiff’s car, while the former unnecessarily included some new rather than used parts, the District Court in the exercise of its discretion took a mean figure which was felt to be fair to both parties, much as was done in Stone v. Commercial Fire & Casualty Co., La.App. 1 Cir., 50 So.2d 327. “In cases where although there is a legal right to recovery, an exact estimation of damages cannot be made, courts have discretion to assess same based upon all the facts and circumstances of the case, see, for instance, Brantley v. Tremont & Gulf Railway Co., 226 La. 176, 75 So.2d 236,” Harrison v. Petroleum Surveys, La.App. 1 Cir., 80 So.2d 153, at page 158. We do not find such method of.- arriving at the damages manifestly erroneous within all the facts and circumstances of this case.

While plaintiffs seek additional medical expenses than those awarded in the amount of $37, the record is barren of proof of the cost of such additional medical expenses.

2. Personal Injuries.

The District Court awarded Mrs. Jackson individually the sum of $2,500 for her personal injuries. Aside from shock, fright, and a severe shaking-up from the hard impact, these injuries principally consisted of a fractured coccyx or tailbone, which Mrs. Jackson testified was severely painful for two months and still occasionally painful on sitting down a date of trial, 17 months later. Dr. Moss Bannerman, orthopedist, examined Mrs. Jackson four times over a period from May to August of 1953, at the end of which time the tenderness was practically gone, although she still complained of pain. Dr. Bannerman testified that pain on sitting may remain as a result of such injury over a period of months, although ultimately the pain will disappear completely. Mrs. Jackson received heat treatments for six weeks and used a support for her lower back during that period. ’ According to Mrs. Jackson and her husband, as a result of the accident she becomes very nervous whenever motor-driving over 35-40 mph.

We do not feel the award to Mrs. Jackson either manifestly excessive or manifestly insufficient. See for instance Attaya v. Zimmerle, La.App. 1 Cir., 83 So.2d 676; Benoit v. Commercial Casualty Insurance Co., La.App. 1 Cir., 79 So.2d 647; Cascio v. Adler, La.App., 47 So.2d 133; Baquie v. Meraux, 1929, 11 La.App. 368, 123 So. 338. The necessarily somewhat arbitrary determination of a monetary award for pain and suffering may vary greatly according to the facts and circumstances of each suit, and this factual determination of the District Court herein will not be disturbed in the absence of manifest error.

Likewise we do not believe manifestly erroneous its award of $100 to each of the three children (aged 19, 13, and 9) passengers in the vehicle struck, based on nervous shock, fright, and minor bruises or .shaking up suffered by them in the accident; although not serious enough to require the attention of a physician and proved by the testimony only of their parents. See Wilson v. Williams, La.App. 1 Cir., 82 So.2d 71, syllabus 9. While plaintiffs seek increase in the award because of alleged persistent headaches suffered by two of these children after the aforesaid accident, such additional suffering is not proved by competent medical or other proof, nor is it so related to the accident.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed at the cost of defendants-appellants.

Affirmed.