text:
    INSURANCE AGENTS FINANCE CORPORATION v. HOWELL et al.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


source: Caselaw Access Project

license: Public Domain

text:
    HUNDERTMARK v. HUNDERTMARK.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CURTIN v. KENNEY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    LANE v. SCHUMACHER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    RANKIN v. OOLITE CONCRETE CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MOONJIAN v. KULHANJIAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    McLEOD v. SINABIAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHMIKLER v. J. & L. Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CITY OF MIAMI v. CAMPBELL.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CRAVERO CLOVERLEAF ENTERPRISES v. GIANOLIO et al.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SCHNEIDER v. SCHNEIDER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    GANZER v. GANZER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WHITE STAR REALTY, Inc. v. TREASURE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SUNSHINE PARKING, Inc. v. BOUTSELE (two cases).
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HARRIS v. SILVER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HOWARD S. GANS FURNITURE SHOWROOM v. BENHRENDT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    DANCHES v. NASTER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    COLONY HOTEL OF BAL HARBOR v. BOHRER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    BAUER v. WASMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    GLOBE CONSTRUCTION CO. v. TAYLOR.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    STATE ex rel. SCHON v. HOLT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    KELLY v. GOWIN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    KAY v. COHEN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHAYNE v. SHAYNE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    LEWIS v. LEWIS (two cases).
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    BURTON v. BURTON.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    GRAY v. DE MEOLA.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    MALOOF v. MALOOF.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    ANDERS v. UNITED SERVICE CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    In re ESTATE of HARTMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    NEIVERT v. EVANS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    ELLER v. KOCH.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    IRELAND v. SCOTT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SHOTKIN v. LANE BRYANT, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    PERIKLI v. PARKES.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    CLEMONS v. POTTER OLDSMOBILE, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    POELNS v. MATTOS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    TURCHIN v. SEA ISLE HOLDING CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    GREER v. DYNAMIC APPLIANCE CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    STATE ex rel. RILEY v. HEFFERNAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HOWARD v. WISE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    WALSH v. DAWES.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    SPICY v. NATTEAL.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    LLOYDS OF LONDON v. FLORIDA FLAMINGO FOOTWEAR, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    ZENCHENKO v. ZENCHENKO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Dismissed without opinion.


text:
    HORN v. STATE ROAD DEPARTMENT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    KING v. SAILFISH YACHT & BEACH CLUB.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    PAUL v. ORMOND HOTEL, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    WIDETT v. WIDETT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    GRANIK v. ESCH.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    HARDIN v. HARDIN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    FISHER v. HINCHEE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed .without opinion.


text:
    STEARN v. CONCRETE PLACING COMPANY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    BONDED LABORATORIES, Inc. v. KEY CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    SHOTKIN v. WEKSLER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari dismissed without opinion.


text:
    CHAVIS v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    POWELL v. STATE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    ORMOND BEACH TRANSIT CO. v. KING.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SEABOARD AIR LINE RAILROAD COMPANY v. KING.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    CROSS v. FLORIDA INDUSTRIAL COMMISSION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    LANGSTON CONSTRUCTION CO. v. MURPHY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    WINN & LOVETT GROCERY CO. v. McDANIELL.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    STUTZ v. AMERICAN AIRMOTIVE CORPORATION.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    ANDERSON v. CROMWELL INDUSTRIES, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    BAKER v. GREAT AMERICAN INDEMNITY CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SUPERIOR GREENBRIER GLAD FARMS v. RICH and Florida Industrial Commission.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    McVAY v. STOBS CONSTRUCTION CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    McBRIDE v. PETERS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    WILLIAMS MEAT CO. v. KNIGHT.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    YELLOW CAB CO. v. BARBER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    McLEOD v. TAMPA TIMES CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    LEE v. BOCA RATON HOTEL & CLUB.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    GOODWIN v. JONES CONSTRUCTION CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    KENAD v. ROSSBOROUGH.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    RICHARDS v. OCEAN TILE, MARBLE & TERRAZZO CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    STANDARD OIL CO. v. BRIDGES.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    HENNESSY & SON, Inc. v. MARPLE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion,


text:
    ATLANTIC COAST LINE RAILROAD CO. v. LAMB.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    WETHERINGTON v. HUGHES and Orange State Oil.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    TAYLOR v. ZACHARIAS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    HOTEL & RESTAURANT EMPLOYEES UNION v. LEVY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SUMNER v. ORLANDO LIVESTOCK CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    PITTMAN v. PRIEST.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    DEWAGENIERE v. RAILWAY EXPRESS AGENCY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SIMMONS v. KNIGHT, ORR & CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    GOOD HOUSEKEEPING FOOD PLAN v. GREAT SOUTHERN TRUCKING CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    BORCHARDT v. PRIGG.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    KRAUSE v. VIGO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    GAVIN v. O’CONNOR.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    BARNETT v. TOLAND.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    DICKENS v. DICKENS.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    LUMBER SALES, Inc. v. NORTHWEST LUMBER CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    STUDDLE v. STUDDLE.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    HATOFF v. HATOFF.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    KRAMER v. MARTIN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    LAWSON v. WHITMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    RUZA v. RUZA.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    U. S. UNDERWRITERS, Inc. v. BELL INVESTMENT CO.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    GREER v. BROWARNIK.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    BROWARNIK v. GREER.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SEABOARD AIR LINE R. CO. v. BRANHAM.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SISHOLTZ v. SISHOLTZ.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    ROSEN v. YUSKOWITZ.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    TEITRICK v. TEITRICK.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    JOHNSON v. FENWICK.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    NUNLEY v. McGAHEY.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    ALSON MANUFACTURING CO. v. LEHMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    GOLDFARB NOVELTY CO. v. VANN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    PODES v. POLKINS, Inc.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    EPSTEIN v. EPSTEIN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SEIDMAN v. SEIDMAN.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


text:
    SCHWARTZ v. MARLBOROUGH.
    Supreme Court of Florida.
    Jan. Term 1956.
   Certiorari denied without opinion.


author: SIMON, Justice.

text:
    230 La. 339
    SOUTHWEST GAS PRODUCING COMPANY, Inc., et al. v. HATTIE BROTHERS et al.
    No. 41563.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      Dhu and Lea S. Thompson, Monroe, for' defendants-appellants.
    Charles E. Barham, Ruston, for defendant-appellee.
    Shotwell & Brown, Monroe, for plaintiffs-appellees.
   SIMON, Justice.

'As lessees by mesne assignments of a mineral lease dated April 26, 1944, charged with the obligation to make proper payment of royalties, plaintiffs instituted this concursus proceeding against defendants-appellants, defendants-appellees and others for a judicial determination of the ownership and the extent to which defendants are entitled to participation in the royalties from the production allocated to two tracts of land in Section 11, Township 19 North, Range 2 West, Lincoln Parish, Louisiana. Plaintiffs deposited in the registry of the court all accrued royalties involved in this cause and have continued to make additional similar deposits of royalties as they accrue.

The record discloses that, subsequent to the execution of the mineral lease referred to above, appellants, who were parties thereto, made sales of their mineral interests with respect to the lands included in said lease. Because of alleged ambiguities as to the description of the property and as to the extent of the mineral interest actually conveyed by said deeds, disputes arose between the parties thereto. Appellants did not agree with the computation of their interest as set out in certain division orders, showing them to be without rights or interest therein, and refused to sign the said division orders prepared by plaintiff and submitted for execution by all parties herein originally námed as defendants. Hence this concursus proceeding.

Upon trial on the merits the district court rendered judgment in accord with the interpretation of the said' mineral deeds and with the computation set forth by plaintiffs in said division orders; and those defendants whose claims were not sustained by the trial court now prosecute this appeal.

It appears that under date of April 26, 1944, appellants, with the other descendants of their ancestors, Andrew M. and Martha Jane Gill Brothers, executed an oil, gas and mineral lease in favor of S. L. Cole covering in part the following property: (1) Sy2 of the SEi/4 of SWi/i of Section 11, Township 19 North, Range 2 West, containing 20 acres, and which shall be hereinafter referred to as “Tract A”; and (2) that part of the Wj/2 of the SEj4, lying North and West of a certain branch of Section 11, Township 19 North, Range 2 West, containing SO acres and which shall be hereinafter referred to as “Tract B”.

By act dated May 16, 1944, S. L. Cole assigned the said mineral lease to Magnolia Petroleum Company, who in turn, by act dated March 18, 1952, assigned said mineral lease to the plaintiffs herein, with certain royalty reservations. Plaintiffs’ rights as leaseholders are undisputed and recognized by all parties.

By Order No. 206-A, dated June 7, 1951, and Order No. 206-A-l, dated March 12, 1952, the Department of Conservation of the State of Louisiana designated Section 11, Township 19 North, Range 2 West, in its entirety as a unit for development and production of gas from the Vaughn and Feazel Sands underlying said section.

Thereafter, in accord with the terms of their leases, plaintiff and others holding leasehold mineral rights covering lands located in Section 11 executed and recorded a Declaration of Pooling and Unitization, pooling and unitizing all lands included in Section 11, such unit being designated the “Gibson No. 1 Unit, Vaughn Sand Units, Unionville Field, Lincoln Parish, Louisiana”. This unit embraces 640 acres and includes the property hereinabove referred to as “Tract A” and “Tract B”. Therefore, %4o of the total production from the well located on the Gibson No. 1 Unit is allocable to the land included in Tract A, and ®%40 is allocable to the land included in Tract B.

There is no contest over the royalties allocable to Tract A. The contest in this suit is confined to the royalties allocable to Tract B, appellee Robert L. Fuller, whose claim is disputed by appellants, asserting title to the disputed % of the royalties credited to Tract B.

The record discloses that W. C. Brothers, whose heirs are appellants herein, was at the time of his death the owner of an undivided % interest in Tract B. A. M. Brothers and two of his sons, W. C. Brothers and L. L. Brothers, acquired the entire W^j of SE^ of Section 11, Township 19 North, Range 2 West, under sheriff’s deed dated April 30, 1888. On April 20, 1889, A. M. Brothers and his said two sons entered into a partition whereby A. M. Brothers and W. C. Brothers acquired Tract B. There is no record of any deed wherein the said interest of W. C. Brothers in Tract B was transferred to A. M. Brothers. Nevertheless, Tract B is referred to and was publicly known as the A. M. Brothers Estate and assessed on the tax rolls as such.

On various dates during October and November of 1951, each of the appellants executed mineral deeds in favor of Frank Trussell, who on December 17, 1951 transferred the rights so acquired to Robert L. Fuller. Each of the said deeds from appellants states that:

“ * * * he does by these presents grant, bargain, sell, convey and deliver, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against former proprietors of the property herein conveyed unto Frank Trussell, husband of Ivy Nobles, resident of Lincoln Parish, Louisiana, and assigns, the following described property to-wit:

“All of his right, title and interest in and to the oil, gas and other minerals, in and under and that may be produced from the following described lands situated in the Parish of Lincoln, Louisiana:

“Ei/2 of NWy4 and >Ny2 of SW^ of NWy4, Sec. 14, Twp. 19 N. R. 2 West, 100 acres more or less (Book LL, pg. 29 and E pg. 44), and all that portion of W1/^ °f SEy4, Sec. 11, Twp. 19 N. R. 2 W., north and west of a certain branch, containing 50 acres, more or less (Book I, pg. 160), S% of SEyá of SWV4, Sec. 11, Twp. 19 N. R. 2 West, 20 acres more or less and W% of 'NWy, of NEy4 and all that part of the SW% of the NE34 lying north of the Vienna and Farmerville Road, Sec. 14, Twp. 19 N. R. 2 West (Book LL, pg. 29, E pg. 44 and I pg. 160) containing in the aggregate 197 acres.

It being the intention of the vendor to sell all of his interest in and to the minerals in and under the lands belonging to the estate of Andrew M. Brothers and Martha Jane Brothers, in Sections 11 and 14, Twp. 19 North, Range 2 West.” (Italics ours.)

Appellee Robert L. Fuller contends that by these deeds appellants conveyed all of their right, title and interest in the minerals from the lands specifically described therein, including Tract B which is specifically described therein.

On the other hand, appellants contend that they conveyed all of their interest in the specifically described land, except the undivided % interest which they owned in Tract B by virtue of inheritance from their .father, W.- C.. Brothers; that they signed these mineral deeds as prepared and presented to them by the purchaser on the strength of the declaration contained therein and thereby intended to sell only their mineral' interest in and under the lands belonging to the estate of Andrew M. Brothers and Martha Jane Brothers, their grandparents; and that it was never their intention to sell their mineral interest in the undivided % interest of Tract B inherited 'from their father, W. C. Brothers. Accordingly, they pray that they be recognized as owners of said undivided % m-terest, subject to the oil and gas lease thereon, and as such, entitled to % of 'b%40 of all the royalties' accrued or that may accrue from production within the Gibson No. 1 Unit, in proportion to their respective heritable interests.

Alternatively, they contend that should ■these said mineral deeds be construed by the court to cover the undivided % interest in Tract B- acquired by them as heirs of W. C. Brothers, then said mineral deeds should be reformed and corrected so as to be limited to and cover only the undivided % mineral interest acquired by them from the estate of A. M. Brothers. They contend that the deeds by which Frank Trussell acquired their undivided % mineral interest inherited by them from W. C. Brothers were fraudulent, erroneous and in bad faith, and that said deeds having been prepared and presented to them by said purchaser or under his direction, the declarations therein contained should be construed against him.-

On the- other hand, appellees deny the allegation of fraud, error and bad faith and contend that if the said deeds contained any ambiguous description, the ambiguity should be construed against them as sellers, relying on LSA-Civil Code Article 2474.

Thus, the primary and the alternative contentions of appellants which find their source in the intention of the parties prevailing at the time of the execution of the mineral deeds in question presents purely a factual situation, whether or not appellants sold to Frank Trussell, assignor of appellee' Robert L. Fuller, the undivided % mineral interest in the 50-acre tract known as Tract B, acquired by them as heirs of W. C. Brothers.

In the hearing below, appellants testified that by the execution of these mineral deeds they intended to- and did sell only those mineral rights in Tract B which were in.herited by them from their grandparents, Martha Jane and A. M. Brothers; that they did not intend to nor did they sell their mineral rights in Tract B that were inherited by them from their deceased father, W. C. Brothers. They further testified that at the time of the mineral sales they were completely unaware, of any interest in Tract B belonging to their deceased father, W. C. Brothers, they having learned of their father’s ownership therein only after the mineral sales had been executed — more specifically, upon presentation to them for execution of the division orders or royalty interest.

In their testimony they concede and admit that at no time prior to the .execution of the deeds to Trussell were they conscious of the fact that their deceased father, W. C. Brothers, had any vested right of ownership in Tract B, but in fact believed that all of the land herein involved comprised the estate of A. M. Brothers. It is shown that Tract B, including other lands in Sections 11 and 14, owned by their grandfather, A. M. Brothers, was carried on the assessment rolls for state and parish taxes in the name of Estate of A. M. Brothers. Following the death of A. M. Brothers, certain mineral leases were granted on the lands, including Tract B, in the name of Estate of A. M. Brothers as lessor; and the bonus rentals obtained thereby were proportionately divided among the children and grandchildren of A. M. Brothers. In none of the commercial transactions involving Tract B was W. C. Brothers ever considered or referred to as the owner of an undivided t/¿ interest therein. On the contrary, all of the heirs, including appellants themselves, as well as the general public, dealt with this property in dispute as property forming part of the estate of A. M. Brothers.

Frank Trussell testified that by these mineral deeds entered into with appellants it was at all times his desire and intent to acquire whatever mineral interest they owned in Section 11 and Section 14. He further testifies that during conversations leading up to the execution of these mineral deeds, appellants mentioned certain properties which were not to be included in the mineral deeds, which property so excepted was located in Section 36 and known as the W. C. Brothers estate or homestead. His testimony in this respect is corroborated and confirmed by the testimony of the appellants, who frankly admit that at the time of the execution of these mineral deeds the only property known to them as forming the W. C. Brothers estate to which they had any right of inheritance was their father’s homestead located in Section 36 and to which no reference is made in said deeds.

Appellants cannot be heard to say that they did not intend to sell the herein disputed undivided % mineral interest in Tract B, for the obvious reason that at the time of the sales they were completely unaware of the undivided % interest therein of their deceased father but believed their grandparents owned the whole of said tract.

In each deed the respective appellants conveyed “all of his interest in and to the oil, gas and other minerals” that may be produced from, besides other properties, Tract B. Albeit, hindsight cannot be now urged to recant or impugn their intentions made evident by the clear and unambiguous declarations in said deeds.

We find no ambiguity in the description of the property conveyed in the mineral deeds which clearly and specifically describe the tract of land herein involved. Furthermore each of these deeds clearly and unequivocally recites that the vendor therein does grant, bargain, sell, convey and deliver all of his right, title and interest in and to the oil, gas and other minerals, in and under that may be produced from the land described in said deed, including and specifically naming Tract B.

The trial court correctly rendered judgment rejecting the demands of appellants to be recognized as owners of an interest. in the minerals on, in and under Tract B, thereby concluding that by the mineral deeds executed in favor of Frank Trussell appellants sold all their rights, interests and titles to minerals in, on and under Tract B. We find no manifest error in that conclusion. Being convinced of the correctness of the findings of fact resolved by the district judge, we adhere to the well-stabilized jurisprudence of this court that the conclusions reached by him, and his judgment on the facts, should not be disturbed unless manifestly erroneous. Nalty v. Nalty, 222 La. 911, 64 So.2d 216; Rosenthal v. Gauthier, 224 La. 341, 69 So. 2d 367; Olivier v. Abunza, 226 La. 456, 76 So.2d 528; McMahon v. Manufacturers Casualty Insurance Co., 227 La. 777, 80 So.2d 405; Sunseri v. Westbank Motors, 228 La. 370, 82 So.2d 43.

We now move to the alternative plea of appellants that the royalty deeds should be reformed so as to conform to the alleged intention of the vendors. By their alternative demand they would have us reform the deeds so as to reflect their intention to except the undivided % interest in Tract B, originally owned by their father, W. C. Brothers.

The deeds should be construed as a whole in order to arrive at the intent of the parties. This rule is laid down by LSA-Civil Code Article 1955, which provides that “All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act.” Bremer v. Lane, 185 La. 543, 169 So. 568; Gibson v. Zylks, 186 La. 1043, 173 So. 757; Reynaud v. Bullock, 195 La. 86, 196 So. 29.

We feel as the trial judge manifestly felt, that the deeds contained statements and descriptions to validly transfer all of the rights, titles and interest of the appellants in the specifically described property designated herein as Tract B.

Appellants urge this court to consider the facts that they lived at a distance from the location of the property .and are inexperienced in description of and trading in mineral property and rights, whereas the purchasers and their attorneys are experienced in these matters and were obliged in preparing these deeds to make clear what they intended to buy. These allegations and the evidence contained in the record are insufficient to overcome the positive language of the deeds herein or to sustain appellants’ contention that the instruments do not reflect the true intention of the parties thereto. In order to give them the relief prayed for by reforming the deeds herein involved so as to except the minerals heretofore owned by W. C. Brothers, deceased, evidence must be clear and convincing that it was the intention of the parties that their rights .as heirs of W. C. Brothers in, on and under Tract B were not included in the sale. We conclude that appellants have not borne the burden of proving their alternative demand.

In the case of Reynaud v. Bullock, supra [195 La. 86, 196 So. 34] we held:

“It is an established rule of law in our jurisprudence that ‘Either party is always permitted, in a suit between the parties to a contract, to correct any error in the instrument purporting to evidence the contract, so as to make it express truly and correctly the intention of the parties,’ (State v. Standard Oil Co. of Louisiana, 164 La. 334, 354, 113 So. 867, the cases therein cited, and Fair v. Williams, 187 La. 953, 175 So. 631) provided the rights of third parties have not intervened. Sentell v. Randolph, 52 La.Ann. 52, 26 So. 797; Adams v. Drews, 110 La. 456, 34 So. 602; Bender v. Chew, 129 La. 849, 56 So. 1023; Frantom v. Nelson, 142 La. 850, 77 So. 767; Giovanovich v. Breda’s Widow .and Heirs, 149 La. 402, 89 So. 251; Waller v. Colvin, 151 La. 765, 92 So. 328; 12 American Jurisprudence 631, Section 138; Williston on Contracts, Revised Edition, Volume 5, Section 1585, page 4423 ; 23 Ruling Case Law 333, Sections 25 and 27; 53 Corpus Juris 908, 935, 936, and 962. The error or mistake must be mutual. Hello World Broadcasting Corporation v. International Broadcasting Corporation, 186 La. 589, 173 So. 115; Crowell & Spencer Lumber Co. v. Hawkins, 189 La. 18, 179 So. 21; Topps v. North British & Mercantile Ins. Co., La. App., 148 So. 470; 13 Corpus Juris 373, Section 254; 13 Corpus Juris 520, Section 481; 53 Corpus Juris 941, Sections 59 and 60; 23 Ruling Case Law 327, Section 20; 12 American Jurisprudence 624, 625, Section 133; and Article 1826, Revised Civil Code. The burden is on the one seeking the reformation to prove the error (Met-calfe v. Green, 140 La. 950, 74 So. 261; White v. Myane, 10 La.App. 195, 120 So. 650; Crais v. Castaing, 13 La.App. 395, 128 So. 300; Coussons v. Smythe, La.App., 178 So. 657), and he must carry the burden by clear, and the strongest possible, proof. Palangue v. Guesnon, 15 La. 311; Dickson v. Dickson, 36 La.Ann. 870; Ker v. Evershed, 41 La.Ann. 15, 6 So. 566; Bryan v. Wisner, 44 La.Ann. 832, 11 So. 290; Glad-dish v. Godchaux, 46 La.Ann. 1571, 16 So. 451; Chaffe v. Minden Lumber Co., 118 La. 753, 43 So. 397; Waller v. Colvin, 151 La. 765, 92 So. 328; and Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855.

“It was held in the case of Nelson, Curtis & Nelson v. Bridgeman, 152 La. 190, 92 So. 855, 860, that: * * a strong presumption obtains that the deed, as executed, properly describes and conveys all of the land intended to be conveyed. * * * the evidence [of an omission or error] * * * must be clear and convincing * * (Brackets ours.)”

Accordingly, for the reasons assigned, the judgment of the district court is affirmed.

      . LSA-R.S. 13:4811-4817, inclusive.

      . Floye Boulware Savage, Loye Boulware Love, Jimmie Boulware Waller, Billie Boulware Manasian, Dewey O. Brothers, Andrew B. Brothers, Wylie A. (W.A.) Brothers, Oassyle Brothers Ringo, J. Floyd Brothers, Janie Brothers Reardon.

      . Robert L. Fuller and Harold L. Woods.

      .Hattie Brothers, Fay Brothers Hurley, Sannie Sue Brothers Harper, Clementine (Tine) L. Brothers, Lola Kendall Brothers, Martha Joe Brothers Carver, Benton Brothers, James K. Brothers, F. M. Brothers, Lorna Brothers Revels, Thelma Brothers Turner, Johnnie B. Barham, C. L. Brothers, Howard L. Brothers, Archie G. Brothers, Carl J. Brothers. The rights of these defendants are not at issue on this appeal.

      . O.O. Art. 2474: “The seller is bound to explain himself clearly respecting -the extent of his obligations: any obscure or ambiguous clause is construed against him.”


text:
    230 La. 356
    STATE of Louisiana v. Robert JONES.
    No. 42808.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      B. B. Croom, Baton Rouge, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Scallan E. Walsh, First Asst. Dist. Atty., Baton Rouge, for appellee.
   SIMON, Justice.

Robert Jones was indicted for the crime of murder, tried before a jury, found guilty and sentenced to death. From his conviction and sentence he prosecutes this appeal, relying on three bills of exception.

Bill of Exception No. 1 is based on the complaint that the district attorney in his opening statement before the jury failed to state that he would introduce a confession made by the accused, but informed the jury that he would show by the free and voluntary admission of the accused certain admitted facts contained therein.

In the course of the trial the district attorney proceeded to lay a foundation for the introduction of the written statement or admission of the accused. Objection was made on the ground that if the written statement or admission constituted a confession it was inadmissible for the failure of the assistant district attorney to have informed the jury in his opening statement that a written confession would be introduced. Whereupon, the court retired the jury for the purpose of ascertaining whether or not the written statement or admission was in fact a free and voluntary confession. The court ruled the written statement admissible, it on its face partaking of the nature of both an inculpatory admission and a confession. Thereupon, the jury was returned into the courtroom, and testimony as to its free and voluntary character was again introduced in the presence of the jury. The statement was then admitted in evidence over the objection of counsel for the accused and read to the jury.

In his per curiam the trial judge points to the fact that at no time did counsel for the accused object to the admissibility of the written statement or confession of the accused for want of proper foundation or sufficient evidence to show that it was freely and voluntarily made; nor did he avail himself of the right of cross-examination in connection therewith. The trial judge further points out that the sole and only objection made by the defendant was that in his opening statement to the jury the assistant district attorney had designated the statement given by the accused as an “admission” rather than as a “confession”, which is the sole basis of Bill of Exception No. 1.

In all cases that are triable by a jury it is the mandatory duty of the district attorney to make an opening statement to the jury, explaining the nature of the charge against the accused and the evidence by which such charge is expected to be established. Article 333 of the Code of Criminal Procedure, LSA-R.S. 15:333; State v. Ducre, 173 La. 438, 137 So. 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State v. Childers, 196 La. 554, 199 So. 640; State v. Johnson, 198 La. 195, 3 So.2d 556; State v. Smith, 212 La. 863, 33 So.2d 664; State v. Palmer, 227 La. 691, 80 So.2d 374.

The written statement or admission signed by the defendant and referred to by the assistant district attorney in his opening statement is as follows:

“My name is Robert Jones (C.M) Age 39 and I have been residing at 811 Watts Alley. The statement I am about to make is true and correct to the best of my knowledge and is given without any threats or promises having been made. I have been advised that anything I say may be used against me and that I have a right to see a lawyer.

“Last night about nine o’clock I called Winnie B. James with whom I have lived as common law husband for about ten years, but from whom I separated about a month ago. I called her because we had agreed to divide the furniture and I was to pick mine up. She told me not to come by but I told her I was coming anyhow because I had to work tomorrow. I went by there in my car and she stood on the porch and told me not to stop. I then went back and got this boy called Richard who has a truck. The reason she didn’t want me to stop was because Leon Giles’ car was in front of her house and I know he carries a gun. When we got in the truck we went back to Dixie Alley and Winnie J and Giles were in his car on Terrace St. near the railroad. They were fighting so Robert said he wasn’t going to stop and he drove me back to East Blvd. to my car. When I got in my car I got my gun out of the trunk and placed it behind the front seat. I headed back toward Dixie Alley on Louise St. and as I passed along Louisa and I saw Leon Giles walking out of a driveway. He said, ‘You black son of a bitch you are one sob I’m going to kill’. When he said this he was in the driveway nearly to the porch. I stopped my car and reached for my rifle and shot at him twice before he got on the porch [e] and twice more after he got on the porch. After I shot him I went to Mr. Paul Zarith’s house and told him what I had done and asked him to bring me to the Police Station. The above statement has been read to me and is true and correct.”

The record discloses that the opening statement pertinent to the issue herein is as follows:

“We will next show by the free and voluntary admission of the accused himself that when he got to his car on East Boulevard that he opened the trunk of his car and removed therefrom a 22 rifle which he placed behind the front seat of his car and that the accused, Robert Jones, then started back toward Dixie Alley, where he had seen the deceased, Leon Giles.

“That as he was heading toward Dixie Alley he drove his car down Louisa Street and as he passed the home occupied by Leon Giles, he saw the deceased Leon Giles walking up the driveway toward the front of his home; that the accused, Robert Jones, then stopped his car, reached for his rifle and shot the deceased two times before the deceased reached his front porch and shot him twice in the back after the deceased ran upon his front porch.”

It is significant that in this opening statement the assistant district attorney delineated and tracked the words of the defendant contained in his written statement, thus stating that he would show that the accused admitted, in addition to other facts, that he reached for his rifle and shot the deceased.

Article 449 of the Code of Criminal Procedure, LSA-R.S. 15:449, declares that the term “admission” is applied to those matters of fact which do not involve criminal intent; whereas, the term “confession” is applied only to cm admission of guilt and not to an acknowledgement of facts merely tending to establish guilt. A confession of a person accused of crime is admissible in evidence only if freely and voluntarily made. LSA-R.S. 15:451. Admissions involving the existence of a criminal intent or inculpatory facts are governed by the rules applicable to confessions. See Article 454, Code of Criminal Procedure, LSA-R.S. 15:454; State v. Crittenden, 214 La. 81, 36 So.2d 645; State v. Robinson, 215 La. 974, 41 So.2d 848; State v. Clark, 228 La. 899, 84 So.2d 452.

An examination of the written statement purportedly made by the accused reveals an unequivocal acknowledgement of facts that tend to establish guilt of the crime charged and not an admission of guilt thereof, and is, therefore, an “admission”, as defined by Article 449, Code of Criminal Procedure. Under our law this admission involving inculpatory facts when introduced into evidence at the trial of the accused for the crime of murder must be introduced in accordance with law, as hereinabove stated.

The underlying spirit aria purpose of Article 333 of the Code of Criminal Procedure mandatorily requiring an opening statement by the district attorney is to force him to disclose the state’s evidence, not only to inform the court, the jury and the defendant of what facts the state intends to prove, but in fairness to permit the defendant to adequately present his defense and avoid being taken by surprise.

In the instant case, the opening statement of the assistant district attorney not only disclosed the fact that the accused made a free and voluntary admission but presented a full disclosure to the jury and the defendant of the exact contents of his written statement. Certainly, under such full disclosure it is inconceivable to us that the defendant was not fully apprised of the evidence which the state intended to prove as complained of by him.

Counsel for defendant relies on the case of State v. Silsby, supra, [176 La. 727, 146 So. 689] to support his contention and quotes from that opinion as follows:

“In our opinion the statute requires the district attorney to set forth not only the facts which he expects to prove, but also the evidence, i.e., the nature of the evidence, by which he expects to prove them, whether oral or written, or direct or circumstantial, or confessed. * * * ”

In the Silsby case, in his opening statement the district attorney failed to inform the jury that he intended to offer in evidence the confession of the accused. Later, the confession was admitted over the objection of counsel for defendant, and for that reason the verdict and sentence were set aside by this court.

In the case of State v. Bishop, 179 La. 378, 154 So. 30, 31, in considering the validity of a bill of exception taken by defendant on the ground that the district attorney in his opening statement to the jury failed to inform them whether the confession was made orally or in writing, and in which bill defendant relied upon and cited the Silsby case, we held the bill to be without merit. In referring to the above quotation from the Silsby case we held:

“The following words in the opinion: ‘Whether oral or written, or direct or circumstantial, or confessed,’ are intended as merely illustrative. The holding of this court, divested of superfluity, is that, where the district attorney proposes to offer in evidence the confession of the accused, he should, in his opening statement, inform the jury of that fact. * * *"

In the instant case, the statement of admissions referred to by the district attorney in the opening statement not having admitted the guilt of the crime charged could not have been by him properly termed a “confession”. It was at most an admission of facts involving a criminal intent or inculpatory facts and as such was admissible in evidence upon compliance with the rules applicable to confessions.

We conclude that the opening statement made by the assistant district attorney properly referred to in the written statement of the accused as an admission and delineated the entire facts therein contained and sufficiently explained the nature of the charge and the purport of evidence by which he expected to establish the guilt of the accused. We find no merit in Bill of Exception No. 1.

Bill of Exception No. 2 was taken to the ruling of the trial judge admitting in evidence the rifle alleged to have been used by the accused to shoot the deceased. Counsel for the accused objected to its introduction on the ground that the assistant district attorney had failed to state in his opening statement that he intended to introduce the said rifle in evidence.

The pertinent part of the opening statement with reference to the rifle is the same as that heretofore quoted in our consideration of Bill of Exception No. 1 and does not require repetition.

The provisions of Article 333 of the Code of Criminal Procedure demand that the opening statement of the district attorney explain the nature of the charge and the evidence by which he expects to establish the same; this mandate does not mean that the district attorney must state in minute detail every shred of .evidence he intends to offer on the trial of the case. State v. Pearson, 224 La. 393, 69 So.2d 512; State v. Paternostro, 225 La. 369, 73 So. 2d 177. He informed the jury in his opening statement that he would show that the accused armed himself with a rifle and that he stopped his car, reached for his said rifle and shot the deceased; and such opening statement was sufficient to permit said weapon to be offered in evidence. We find no merit in Bill of Exception No. 2.

After the verdict was rendered in this case, counsel for the accused filed a motion in arrest of judgment, which motion was overruled by the court, and to which ruling Bill of Exception No. 3 was reserved. This bill is based upon the same ground urged in Bill of Exception No. 1, which has been disposed of and therefore presents nothing further for us to review.

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


author: McCALEB, Justice.

text:
    230 La. 367
    Succession of Ed JENKINS. Sim JENKINS et al. v. A. C. DYKES.
    No. 42356.
    Supreme Court of Louisiana.
    June 11, 1956.
    Dhu and Lea S. Thompson, Monroe, for appellants.
    Armand F. Rabun, Farmerville, for defendant-appellee.
   McCALEB, Justice.

Plaintiffs, as sole heirs of their father, Ed Jenkins, are seeking the annulment and cancellation of four purported deeds of transfer of a 170-acre tract of land in Union Parish, which was acquired by their father during the existence of his marriage to their mother, who predeceased him. An undivided fractional interest in this property was subsequently acquired through mesne conveyances by A. C. Dykes, against whom the action is mainly directed.

After a hearing in the lower court, plaintiffs’ suit was dismissed and they timely appealed to the Court of Appeal for the Second Circuit. When the case was submitted to the Court of Appeal for decision, that court, finding that the record did not affirmatively show the value of the 170-acre tract in contest, refused jurisdiction of the case and remanded it, ex pro-prio motu, to the district court for the purpose of receiving evidence as to the amount in controversy with instructions to then grant an appeal to the appropriate appellate tribunal. Succession of Jenkins, La.App., 76 So.2d 450. Conformably with these orders, the district judge heard evidence with reference to the value of the property and thereafter granted plaintiffs a devolutive appeal to this court.

The Court of Appeal erred in refusing jurisdiction of the case. Its opinion .was rendered on December 1, • 1954, approximately two weeks before our decisions in the cases of Beene v. Pardue, 226 La. 606, 76 So.2d 902, and Ilardo v. Agurs, 226 La. 613, 76 So.2d 904, involving similar circumstances. In those matters, it was held that, unless it is affirmatively shown by the record that the case comes within the appellate jurisdiction of this Court as defined by Section 10 of Article 7 of the Constitution, the appropriate Court of Appeal is vested with jurisdiction as the Courts of Appeal have general appellate jurisdiction of all other appeals in civil cases under Section 29 of Article 7 of the Constitution. In addition, it was decided that the Courts of Appeal are without right or authority to remand any case to the district court for the purpose of taking evidence to establish appellate jurisdiction, such jurisdiction being fixed by the original record on appeal and that the orders of the Court of Appeal remanding the cases to the district courts for the taking of evidence to establish jurisdiction were ultra vires and of no effect. These rulings control the case at bar.

For the foregoing reasons, the order of the Court of Appeal for the Second Circuit dated December 1, 1954, remanding this case to the district court for the purpose of fixing appellate jurisdiction, is annulled and all proceedings had in the Third Judicial District Court pursuant to that order are set aside, including the appeal taken herein from those unauthorized proceedings. The Clerk of this Court is ordered to transfer, forthwith, the record in this case to the Court of Appeal for the Second Circuit so that it may hear and dispose of the appeal previously filed in that court under its docket Number 8240, in conformity with law. Taxation of all costs is to be deferred until the final determination of the cause.


author: PONDER, Justice. HAWTHORNE, Justice

text:
    230 La. 371
    STATE of Louisiana v. Lionel Andrew DOMINGUEZ.
    No. 42668.
    Supreme Court of Louisiana
    May 7, 1956.
    Rehearing Denied June 11, 1956.

      Eugene Stanley, John N. McKay, New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., Michael E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, 1st Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for appellee.
   PONDER, Justice.

The defendant was charged in a bill of information with “the crime of gambling as defined in LSA-R.S. 14:90 in that he did unlawfully and intentionally conduct and directly assist in conducting, as a business, at Treme and St. Peter Streets, in the City of New Orleans, of a lottery, whereby a person risked the loss of a thing of value in order to realize a profit.” On trial he was convicted and sentenced to pay a fine of $500 and serve one year in the Parish Prison and in default of payment of fine to serve an additional six months in the Parish Prison. He has appealed from this conviction and sentence.

During the course of the trial, counsel for the defendant reserved twelve bills of exception. Four bills of exception, bearing Nos. 1, 2, 5, and 6, have been abandoned. Bills of exception Nos. 3 and 4 involved the same legal point and will, therefore, be considered together.

Bills of Exception Nos. 3 and 4 were reserved to the overruling of the defendant’s objection to the introduction of certain lottery paraphernalia taken from the person of Wilbur Pollard at the time of his arrest. Counsel .contends that the lottery paraphernalia was not connected with the defendant.

Counsel for the defendant concedes that knowledge and intent forms an essential part of the inquiry and that testimony is admissible to show the conduct or declarations of the accused as tend to establish such knowledge and intent and that evidence of other acts is admissible for that purpose but that evidence of other acts is not admissible to prove the offense charged.

The trial judge in his per curiam points out that Wilbur Pollard was arrested on August 13, 1954, on the date the defendant was charged with having committed the offense, with this lottery paraphernalia in his possession; that Pollard was charged with this same offense of gambling, pleaded guilty to the charge and was sentenced; that it was proved beyond a reasonable doubt that Pollard was an employee and vendor of lottery for the defendant; that defendant’s bookkeeper and his tax consultant identified the paraphernalia as that used in the defendant’s business; and that the connection between the defendant and Pollard was established by them. The trial judge’s per curiam is supported by the record in this case. While Pollard was charged in a separate bill of information, the facts show that he was assisting the defendant in the operation of the business of gambling. Therefore, they were connected offenses and the evidence was admissible.

We see no merit in these bills.

Bill of Exception No. 7 was taken to the refusal of the trial judge to charge himself in writing as provided for under R.S. 15:389.

It is the contention of the defendant that this provision of the Revised Statutes applies to a trial by the judge alone as well as to trial by jury.

LSA-R.S. 15:389 provides as follows:

“The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.”

LSA-R.S. 15:391 provides as follows:

“Every objection to the charge given, or to a refusal to charge as requested, or to a refusal to give the charge in writing, shall be by means of a bill of exceptions reserved before the jury shall have retired to deliberate upon their verdict, and the bill of exceptions shall be accompanied by such a statement of facts as shall show the error in the charge given, or in the refusal to charge as requested, or that the request to give the charge in writing was refused.”

LSA-R.S. 15:393 provides as follows:

“Whenever a case shall be tried before a judge without the intervention of a jury it shall be competent for counsel on each side to present to the court for its consideration propositions in the same manner as charges would be presented were the case tried by the jury, and counsel shall have the right to demand the ruling of the court on such propositions, and to reserve bills of exceptions to such rulings in the same manner as would be done were the case tried before a jury.”

It is to be noted that in the Code of Criminal Procedure, before adoption as part of the Revised Statutes in 1950, that Articles 383 to 393 inclusive are in the chapter entitled “Charging the Jury”. The argument is made by defendant that if Article 389 is not interpreted so as to apply to cases triable by the judge alone that he is deprived of a fundamental right. This argument is answered by the provisions of Article 393 which sets out that when cases are triable by the judge without the intervention of jury each side may present to the court for its consideration propositions in the same manner as charges and this article expressly gives the right to demand a ruling thereon and reserve bills of exceptions to such rulings.

Defendant relies upon the language in State v. Nash, 160 La. 904, 107 So. 616, 617 to the effect that “In proper cases, and upon timely request, the judge is required to charge himself the law applicable to the case.” We have no quarrel with this statement, in fact it is in accord with the provisions of Article 393 of the Code of Criminal Procedure, LSA-R.S. IS :393.

Certainly the judge is presumed to know the law and, if the defendant has any doubts about the court’s interpretation of legal propositions, the procedure set out in LSA-R.S. IS :393 affords adequate relief. This was recognized in the case of State v. Rose, 147 La. 243, 84 So. 643.

The case of State v. Johnson, 154 La. 597, 598, 97 So. 874, relied upon by the defendant, is not authority for his position since therein a request was made for a written opinion and any language referring to a written charge is purely dicta.

It must be concluded, therefore, that the defendant’s request for a written charge was properly refused.

Bills of Exception Nos. 8, 9 and 10 were reserved when the trial judge refused to grant certain special charges. Bill of Exception No. 8 was taken to the refusal to give Special Charge No. 2 which defined what constituted a lottery. Bill of Exception No. 9 was taken to the refusal to give Special Charge No. 3 which set out the elements of a lottery and that an actual award had to be made. The refusal to give these charges is based on the fact that the defendant was charged with the crime of gambling and not with the conducting or operation of a lottery as a crime. See State v. Mills, 229 La. 758, 86 So.2d 895, and State v. Callia, 229 La. 796, 86 So.2d 909.

Bill of Exception No. 10 was taken -to the refusal to grant the second part of .Special Charge No. 5 which in substance states that the State would be required to establish the guilt beyond a reasonable doubt and prove beyond a reasonable doubt every necessary ingredient necessary to constitute a lottery before the court would be justified in finding the defendant guilty. .As stated in the per curiam of the trial judge, the defendant was charged with the crime of gambling and it was not necessary for the State to prove every ingredient relating to lottery before the court could find the defendant guilty. See State v. Mills, supra and State v. Callia, supra.

Bill of Exception No. 11 was taken to the refusal of the trial judge to charge himself as follows:

“Special Charge No. 7.
“The general rule of law forbids the introduction of evidence which will show, or tend to show, that an accused has committed any crime wholly independent of that offense for which he is on trial.
“However, [LSA-]R.S. 15:446 provides :
“ ‘Whenever knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.’
“In considering this character of evidence the Court must not lose sight of the limited purpose for which it is permitted, and the court must remember that the accused is on trial for only one offense, that laid down in the information. Proof of other offenses, if connected with the accused, is permitted solely for the purpose of showing guilty knowledge, system and intent. In consequence, therefore, the State must have proved the guilt of the accused of the offense charged in the Information beyond a reasonable doubt, before the Court would be justified in finding the defendant guilty.
“In other words, should the State have proved beyond a reasonable doubt several or any of these offenses inquired into for the purpose of showing guilty knowledge, system and intent, and yet have failed to prove guilt beyond a reasonable doubt of the offense for which defendant is upon his trial, the Court should find the defendant not guilty.”

The refusal of the trial judge was based on the ground that although the legal propositions were correct yet they required some qualification, limitation and explanation and were based on hypothetical argumentative and abstract situations and that in certain particulars the charge had no applicability to the evidence before the court. In this the trial judge was correct and his ruling thereon will not be disturbed. LSA-R.S. IS :3S0.

Defense counsel points out that the trial judge refused to take notice of the provisions of LSA-R.S. 15:446 in introducing evidence tending to show the commission of other offenses. • But this Court in the case of State v. Mills, supra, held that such evidence as was introduced here is admissible to show continuity of the gambling as a business.

Bill of Exception No. 12 was taken to the refusal of the court to grant a hew trial. This motion is a reiteration of the legal points raised in the bills of exception already discussed and the further allegation is made that there is no evidence at all to support this conviction. This too was already passed upon by this Court in the case of State v. Mills, supra, and it was therein held that this bill presents issues which this Court will not review as the contentions of the defendant fall within the sufficiency of evidence rule.

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

HAWTHORNE, Justice

(dissenting in part).

I cannot agree with the ruling of the majority of the court on Bill of Exception No. 7. I do not subscribe to the holding that the mandatory provisions of Article 389 of the Code of Criminal Procedure, R.S. 15:389, are applicable only to criminal cases triable before a jury.

The law on this subject before the adoption of the Code of Criminal Procedure in 1928 was Section 28 of the Revised Statutes of 1870, as follows:

"In all cases appealable to the Supreme Court, it shall be the duty of the judge to deliver his charge to the jury in writing, if the counsel of either party require the same.” (Italics ours.)

The present law, Article 389 of the Code of Criminal Procedure, reads:

“The judge shall deliver his charge in writing, whenever requested so to do either by the prosecution or the defense prior to the swearing of the first witness.”

It is therefore obvious that the redactors of this Code intended that this law should no longer apply only to cases appealable to the Supreme Court or to charges delivered to the jury, 'but intended it to apply to all criminal cases whether felonies or misdemeanors. Certainly the statute itself makes no distinction between cases triable by a judge and those triable before a jury, and in my opinion the omission from the present law of the provisions which I have italicized in quoting the statute of 1870 is significant.

The jurisprudence is legion that the provisions of these statutes are mandatory, and that the refusal of the judge to comply with them by giving a written charge when requested is fatal to the verdict. See State v. Rini, 151 La. 163, 91 So. 664, and cases there cited; State v. Wilson, 169 La. 684, 125 So. 854.

I dissent.


author: McCALEB, Justice. HAMITER, J., HAWTHORNE, J.,

text:
    230 La. 383
    Reverend Jeter E. COX v. SOUTHWEST REGION CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS et al.
    No. 42454.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Lemle & Kelleher, Carl J. Schumacher, Jr., New Orleans, for defendants-appellants.
    Meyer Sabludowsky, Jorda S. Derbcs, New Orleans, for relators.
   McCALEB, Justice.

This suit for workmen’s compensation is a companion to, and was consolidated for argument with, the case of Meyers v. Southwest Region Conference Association of Seventh Day Adventists, 230 La. 310, 88 So.2d 381, the plaintiff herein being the other minister injured in the automobile accident in which Reverend Meyers sustained injuries.

For the reasons given in our opinion in that case, the judgment of the Court of Appeal herein is reversed and the case is remanded to said court for further proceedings in accordance with law and consistent with the views therein expressed. The costs of the proceedings in this Court are to be paid by defendants.

HAMITER, J.,

concurs for written reasons assigned in Meyers v. Southwest Region Conference Association, 230 La. 310, 88 So.2d 381.

HAWTHORNE, J.,

dissents for reasons assigned in Meyers v. Southwest Region Conference Association, 230 La. 310, 88 So.2d 381.


author: FOURNET, Chief Justice.

text:
    230 La. 384
    Interdiction of Mrs. Marguerite Sassoon OHANNA.
    No. 42233.
    Supreme Court of Louisiana.
    May 7, 1956.
    Rehearing Denied June 11, 1956.
    Richard Dowling, New Orleans, for appellant.
    Racivitch, Johnson, Wegmann & Moule-doux, William J. Wegmann, Trial Atty., New Orleans, for appellee.
   FOURNET, Chief Justice.

This suit was instituted on January 11, 1954, by Al Ohanna to have his wife, Marguerite Sassoon Ohanna, interdicted on the ground that she “has not the power or capacity to take care of her property, or her person,” due to the fact that she is “subject to an habitual state of insanity.” From a judgment dismissing his suit, he prosecutes this appeal.

Counsel for plaintiff in a very perfunctory brief, without citation of authority or analysis of evidence, contends the trial judge in dismissing his suit committed three errors: (1) In refusing to interdict Mrs. Ohanna although he proved through the testimony of the plaintiff, a psychiatrist, and several witnesses that the defendant was insane, (2) in not examining alleged “insane writings” of the defendant, and (3) in failing to take into consideration the failure of the defendant to produce a psychiatrist to establish her sanity or to take the stand in her own behalf.

In an interdiction proceeding the plaintiff has the burden of establishing the incapacity of the defendant, and we know of no law that requires a defendant in such a case to establish by positive evidence sanity, as suggested by counsel, particularly when a perusal of the record in the case, as here, unmistakably shows the plaintiff has failed miserably to carry his burden of establishing the defendant is insane or unable to care for herself and her property. Furthermore, the so-called “insane writings” of the defendant, undated and unsigned and discovered some two years prior to the institution of the interdiction proceedings, could have no bearing on her mental condition at the time of the trial.

The only witness who testified as to Mrs. Ohanna’s insanity was Dr. Herbert R. Unsworth, called as an expert psychiatrist. Dr. Unsworth admitted he saw the defendant only one time for about 45 minutes, and this was some 6 months prior to the time he was testifying in October of 1954. According to his testimony she, at that time, not only “appeared to be as normal as you and I are supposed to be,” but, also, he could not “identify her as being a psychotic through one conversation.” His opinion as to her mental condition was based entirely on her history as given by her husband, and also on the record made up by the De Paul Sanitarium which consists largely of her history as given to that institution by the husband at the time he had her committed there in the spring of 1952 under coroner’s orders.

In the first place, it was established on cross-examination of the husband that much of the family history given by him was incorrect, as, for example, that defendant’s mother had died in a home for the aged, not in an asylum, as he had represented. Furthermore, the De Paul records, made more than two years previous to the institution of this suit, do not support the plaintiff’s charges, for Mrs. Ohanna is described therein as one “who does not appear acutely ill,” as “very cooperative since admission,” and “doing well;” further, that she used “good judgment.” Her progress report shows she was found to be “in good contact with reality and expressed no delusional content.” Finally, the plaintiff did not himself testify that his wife was insane. He readily admitted he did not know and had instituted the interdiction proceedings to have this judicially determined. In fact, his testimony, as well as that of a number of her neighbors and friends, is to the effect that Mrs. Ohanna kept her home neat and clean, was exceptionally neat herself, and took excellent care of her children, who were well behaved and whose custody.had been entrusted to her in her separation and divorce proceedings filed against the plaintiff following her release from De Paul Sanitarium shortly after her commitment there in the spring of 1952. See, Ohanna v. Ohanna, 229 La. 942, 87 So.2d 299.

From an examination of the record in the separation and divorce proceedings, together with the testimony of the plaintiff in the instant case, we gather a rather strong impression that the motive for this proceeding was a desire on plaintiff’s part to avoid the dissolution of the community assets in the former proceedings so that he could remain in control of them.

For the reasons assigned, the judgment appealed from is affirmed.

      . There were four other witnesses called by the plaintiff than himself and Dr. Uns-worth: (1) Mrs. Irene H. Cooper, medical librarian of De Paul Sanitarium, who produced the records sought to be filed but could not identify them since she had not prepared them; (2) Dr. F. W. Brewer, who had handled Mrs. Ohanna while at the institution and was asked only to identify these records, but limited his identification to the very small part thereof entered by himself; (3) Dr. N. II. Rucker, who identified a letter he addressed to the plaintiff in February of 1952 expressing the opinion Mrs. Ohanna was ill and recommending her hospitalization for treatment; and (4) Mrs. J. T. Byrnes, the policewoman who accompanied police officers bodily taking Mrs. Ohanna to De Paul under order of the coroner secured at the instance of the accused in early 1952.


author: HAMITER, Justice.

text:
    230 La. 389
    Frank B. WOOD v. David C. MAYO, Jr.
    No. 42585.
    Supreme Court of Louisiana.
    June 11, 1956.
    Charles E. Richards, New Orleans, for plaintiff-appellant.
    Normann & Normann, New Orleans, for defendant-appellee.
    Felix W. Gaudin, New Orleans, for war-rantor and appellee.
   HAMITER, Justice.

In this petitory action plaintiff, Frank B. Wood, seeks to be declared the owner of a lot of ground situated on the Gentilly Road in the City of New Orleans, measuring approximately 5CK by 94.6'. He alleged, and relies on, a title deraigned by a chain of mesne conveyances dating back to 1864.

Made defendant initially was David G Mayo, Jr. who filed an answer disclaiming any right of ownership to the property and averring that he held it under a lease from Ludie J. 'Cochrane. Whereupon, the latter was substituted as the defendant by means of an amended petition.

Answering, Cochrane generally denied plaintiff’s ownership and averred that he had acquired title in 1945 under a deed from Mrs. Annie Denny, wife of Roy S. Bowdish, both of whom he called in warranty. Additionally, he specially pleaded the acquisitive prescription of thirty years, basing it on an alleged possession held by him and his ancestors in title running back to 1903.

The warrantors, in answer to the call made on them, likewise generally denied plaintiff’s title and specially pleaded the acquisitive prescription of thirty years.

After a trial the district court dismissed plaintiff’s suit. In his written reasons for the judgment he observed: “* * * the Court must frankly state that the location of this particular piece of ground has never been identified with any degree of certainty.

j{s jj« s}: ♦ ♦

“The burden of proof was on the plaintiff to establish his cause beyond a peradventure of a doubt. In the Court’s opinion, he has failed to do this.” The district judge did not pass on the special plea of prescription of thirty years filed by defendant and warrantors.

Plaintiff appealed from the judgment dismissing his suit.

Contrary to the conclusion of the trial judge, the location of the lot of ground in dispute is readily identifiable. Two separate surveys, made respectively in 1924 and 1928 and referred to in deeds executed since those dates, clearly locate the property in accordance with established land marks, such as streets or roads that were familiar to the witnesses acquainted with the area. Moreover, the defendant alleged, and he testified during the trial, that he possessed the lot as described in plaintiff’s petition; and the warrantors, in pleading prescription, averred possession thereof in them and their ancestors since 1903.

With reference to plaintiff’s record title we find that it is evidenced by an unbroken and apparently valid chain of mesne conveyances affecting the property dating back to 1886. Furthermore, it anti-dates the record title introduced by defendant and warrantors (assuming arguendo that the two titles conflict), for theirs did not commence until 1903. Therefore, plaintiff should be recognized as the owner of the property unless his rights have been foreclosed by the acquisitive prescription of thirty years which was specially pleaded by defendant and warrantors.

.Since the trial judge has not passed upon such plea of prescription we shall remand the case to permit his' determination of it and of any incidental questions that may arise. Thereafter he shall render whatever judgment his conclusions may warrant.

For the reasons assigned the judgment appealed from is reversed and set aside and the case is remanded to the district court for further proceedings according to law and not inconsistent with the views hereinabove expressed. Costs of this appeal shall be paid by appellees and all other costs shall await the final determination of the cause.


author: PONDER, Justice.

text:
    230 La. 393
    CITY OF LAKE CHARLES v. Mrs. Evelyn Shirley FUNGAY.
    No. 42850.
    Supreme Court of Louisiana.
    June 11, 1956.

      Carmouche & Martin, Lake Charles, for defendant-appellant.
    George W. Liskow, Jámes R. St. Dizier, Lake Charles, for plaintiff-appellee.
   PONDER, Justice.

The plaintiff-appellee and the intervenors have moved to dismiss the appeal lodged in this Court on the ground that this Court does not have appellate jurisdiction of the case.

The City of Lake Charles brought proceedings against the defendant seeking to enjoin her from using her premises in violation of certain zoning ordinances of that City and sought the removal of structures erected in violation of the ordinances. On hearing of these proceedings, the trial court gave judgment enjoining the defendant from violating Ordinances 707 and 806 of the City of Lake Charles in connection with her property described in the petition and commanded the defendant to remove from her premises the structures placed thereon with the exception of a two-family dwelling. The defendant appealed and the plaintiff-appellee and the intervenors have moved to dismiss the appeal on the grounds that this Court does not have appellate jurisdiction of the case.

The record does not affirmatively show that we have appellate jurisdiction in this case. The testimony of the witness relied upon by the appellant to establish appellate jurisdiction is to the effect that the entire property is valued in excess of $2,-000. There is no testimony as to the value of the property sought to be removed or as to the value of the right invaded by the injunction. In two cases this Court has held that in a suit to enjoin the violation of a zoning ordinance where the record fails to show affirmatively that the value of the right in contest exceeds $2,000 the Supreme Court does not have appellate jurisdiction. See City of New Orleans v. Ryman, 225 La. 1092, 74 So.2d 386; City of New Orleans v. Langenstein, 227 La. 770, 80 So.2d 402. The record fails to affirmatively show that the structures ordered removed were worth in excess of $2,000.

For the reasons assigned, it is ordered that this cause be transferred to the Court of Appeal, First Circuit, pursuant to the provisions of Act No. 19 of 1912, LSA-R.S. 13:4441, 13:4442; the record'To be filed in said court by appellant within thirty days from finality of this decree; otherwise, the appeal to stand dismissed.


text:
    230 La. 396
    In the Interest of Jeffery GLASSBERG.
    No. 42871.
    Supreme Court of Louisiana.
    June 11, 1956.

      F. Irvin Dymond, New Orleans, for defendant-appellant.

      Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., George M. McCulloch, Jr., Edward K. Pinner, Sr., Asst. Dist. Attys., New Orleans, for appellee.
   HAMITER, Justice.

Jeffery Glassberg (age 13) was charged in the Juvenile Court for the Parish of Orleans, through a petition filed by the probation department thereof, with being a juvenile delinquent in that he committed aggravated battery on one Barbara Ann Caire (age 14) by shooting her in the face with a dangerous weapon, to-wit: An 8 MM Mauser rifle. In accordance with the petition he was adjudged delinquent; and he was placed on probation, in the custody of his parents, for a period of three years. From the judgment he has appealed.

The record discloses that during the afternoon of November 21, 1955 appellant went into the yard of a neighbor to play with other children who were there, he taking the rifle with him and initially placing it on a “shoot-the-shoot” (a slide). In the chamber of the gun was a cartridge containing paper wadding. As to whether he was responsible for the loading is a question on which the testimony is conflicting and unsatisfactory. Nevertheless, on his regaining possession of and holding the gun later in the afternoon it discharged and inflicted the injury to Miss Caire. Filing of the instant charge followed

Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Aggravated battery, with the commission of which appellant was charged, is a battery committed with a dangerous weapon. LSA-R.S. 14:34.

Appellant’s counsel concedes that general criminal intent is sufficient to sustain the charge of aggravated battery, a specific intent being unnecessary. However, he urges that in this cause no general criminal intent was proved and, therefore, the juvenile judge erred when reasoning and concluding as follows: “While there does not appear from the evidence submitted any intention on the part of Jeffery' Glassberg to deliberately harm Barbara Ann Caire, certainly the injury suffered by. Barbara Ann Caire was a result of Jeffery’s, action in pointing the gun in her direction.. There must, therefore, be imputed to him-general criminal intent arising from the reasonable result of his act. * * * ”

According to LSA-R.S. 14:10(2) “General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” ■ .

Pertinent also in determining when .general criminal intent is present are observations contained in certain decisions of this court. Thus, in State v. Howard et al., 162 La. 719, 111 So. 72, 76, it was stated: “While no specific intent is required in ‘shooting at a dwelling house,’ yet it is legally impossible that any crime at all can exist, without combination of criminal act and criminal intent, or the intentional doing of a wrongful act. * * *

Hi sk H* ifc * # i}t

“ ‘In other words, where an act is prohibited on pain of punishment, criminal intent is nothing more than intention to do the act, provided the wrongdoer is a person capable of entertaining criminal intent, and acts without justification or excuse.’ Clark’s Criminal Law (2d Ed.) pp. 14 and 50.”

Again, in State v. Fulco, 194 La. 545, 194 So. 14, 17 we observed: “Intent is an element of voluntary action and as all crimes, except those of omission, must be voluntary actions, intent is a constituent element of all criminal acts. But it is not necessary for an act to amount to a statutory crime that the offender must intend to do the crime to which his act amounts, but it is necessary that he intended to do the act which constitutes the crime.”

■ To warrant a conclusion in the instant case that criminal intent was present, and hence that aggravated battery-was committed, a showing that appellant intended to injure Barbara Ann Caire was not essential; only necessary was a proving that he voluntarily committed the act which resulted in her injury. For example, the existence of general criminal intent could be concluded if proof were made that appellant had voluntarily pulled the trigger of the gun to discharge it, for then he would have intentionally committed an act which under the circumstances might reasonably be expected to result in criminal consequences — a battery on one of the children with whom he was playing at the time.

However, according to our appreciation of the record appellant’s pointing of the gun in the general direction of Miss Caire and the discharging of it with the resulting injury were wholly accidental acts. He emphatically denied having intentionally aimed at anyone or pulled the trigger, steadfastly maintaining that the gun fired accidentally as he arose from the ground with his dog. And the testimony of other children who were present tends to support his version, particularly that of the wounded child.

The latter testified as follows:

“Q. Did he point the gun at you?
A. I don’t believe at me, just in the general direction..
!}C * H* * ❖ *
“Q. You and Jeffery have known each other since you were tiny children? A. Four years old.
“Q. Have you always been very good friends ? A. Yes.
“Q. As a matter of fact, you usually exchange Christmas gifts or cards, do you not? A. Yes.
“Q. Has there ever been any serious disagreements between you, or fights or arguments? A. No.
“Q. Now, you and lie liad no argument on the day of this explosion or shooting, did you? You were still friendly on that day, were you not? A. Yes.
* * * * * *
“Q. Now, Barbara, Jeffery had his dog there in the yard with him that day, didn't he? Do you know Jeffery’s dog when you see it ? A. I believe the dog was there.
“Q. Now, think back. Do you recall Jeffery stooping down on the ground, holding the dog by the collar, with the gun in one hand and the dog in the other? A. I know he was sitting on the ground for a little while.
# jf« jfc # ‡ &
“Q. Tell the Judge the incidents that happened at that time, the game, and the interval after that. A. Well, after he chased me around the yard, then he stopped and I was playing with the children, and we were talking about school, or something. We often talked about school. I don’t think it made him angry, or anything like that. Because I think that anything to do with the shooting was purely accidental. He could have been playing with the gun and it went off.

By The Court:

“Q. You think the shooting was accidental? A. Yes, I thought that since it happened.”

Accordingly, we hold that appellant was not guilty of the crime of aggravated battery.

Of course, he may have been grossly negligent by his handling a loaded gun in the presence of other children. But that is not the same as having a general criminal intent in so acting — an essential factor in the crime here charged of aggravated battery.

Alternatively, the district attorney for Orleans Parish who came into the case after this appeal had been taken, suggests that the Juvenile Court was correct in adjudging the appellant to be delinquent since the facts showed that he violated LSA-R.S. 14:39 relative to negligent injuring, the offense being the inflicting of any injury upon the person of another by criminal negligence.

As pointed out above the Juvenile Court concluded that appellant was a delinquent in that he committed the crime charged in the petition of aggravated battery (a conclusion which, in our opinion, was incorrect) and, as a consequence, placed him on probation for three years. We cannot say that the same action would have been taken by the court had appellant been charged as and adjudged a delinquent for his having committed negligent injury only, a crime of far less magnitude than aggravated battery as indicated by the penalty provided for each offense. Therefore, our decree should be only one dismissing this proceeding.

For the reasons assigned the judgment appealed from is reversed and set aside and this proceeding is dismissed.


author: TATE, Judge.

text:
    Ernest HIGGINBOTHAM, Sr., et al. Plaintiffs-Appellees, v. INLAND EMPIRE INS. CO. and Fidelity Mutual Ins. Co. et al., Defendants-Appellants.
    No. 4229.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      ■ Huckabay, Seale, Kelton & Hayes, Baton Rouge, for appellants.
    Wm. T. Bennett, Clinton, for appellees.
   TATE, Judge.

Plaintiff, the father of two minor children injured in an auto-truck collision, sued to recover damages for those injuries and the resulting medical expense individually and on their behalf. The trial court .allowed recovery, and defendants appeal.

Defendants filed an exception of.no right and cause of action in this court, directed at plaintiff’s admitted failure to introduce evidence in support of the allegation in his petition (denied by defendants in answer) that the minor children were born of his presently existing marriage to their alleged mother.

Plaintiff-father has the legal right or capacity to file this suit, without court-' appointment and his qualification as tutor, only if these unemancipated minors on whose behalf suit is instituted are the children of a presently existing valid marriage, Article 221, LSA-C.C., see Cleveland v. Sprowl, 12 Rob. 172. If these minors are children of a marriage dissolved by death or. divorce or in which the parents are judicially separated-; or if these minors are patural or illegitimate children: then their rights can be judicially enforced only in suit brought by a properly appointed and qualified tutor; Articles 246, 250, 256, 334, LSA-Civil Code; Articles 108, 109, 949, Code of Practice; Koepping v. Monteleone, 143 La. 353, 78. So. 590, Mitchell v. Cooley, 12 Rob: :636, Wheeler v. Rodriguez, 13 La. App.,97, 126 So. 715. See Professor Mac-Mahon’s authoritative treatise, Louisiana Practice 154-156.

Thus proof of plaintiff-father’s marital status is indispensable to prove his right to bring this action on behalf of his minor children, and the exception is well taken; Spillman v. Texas & Pacific R. Co., 17 La.App. 473, 135 So. 66, 68. This peremptory exception of no right of action may be pleaded at any time, even on appeal, Articles 345, 346, 902, Code of Practice; Union Bank v. Dunn, 17 La. 234, Doll v. Dearie, La.App., 41 So.2d 84; cf. Spillman v. Texas & Pacific R. Co., supra cit.; see Wheeler v. Rodriguez, 13 La.App. 97, 126 So. 715. However, such exception “must be pleaded specially, and sufficient time allowed to the adverse party to bring his evidence”, Article 346, C.P.; if pleaded on appeal, “the party to whom it is opposed shall have the privilege of demanding that the cause be remanded for trial upon that plea.” Article 902, C.P.

Plaintiff filed with this court a motion to accept as proof of the marital status of the children’s parents certain attached certificates of the Clerk of Court for the parish in which the parents reside, together with supporting affidavits of the parents and the maternal grandfather of the minors. This court, being one of appellate jurisdiction only, cannot accept or pass on evidence presented for the first time in this Court, Article 7, § 29, LSA-Const. of 1921; Bell v. Holdcraft, La.App., 196 So. 379.

Alternatively, plaintiff urges that the written statement of a witness proves parentage and legitimacy. This statement, taken five days after the accident by an adjuster, asserts in part:

“ * * * My sister’s two children was in car with me, both riding in front seat. Their mother’s name is Mary Jane Overton Higginbotham, & father’s name Ernest L. Pligginbotham. The children’s names are James Edward Higginbotham, age 6, Ernest L. Higginbotham, Jr., age 5. These children live with my father. Their mother & father are separated. The mother lives in New Orleans and the father lives in Amite. * * * ”

Accepting the argument of plaintiff-ap-pellee that since said statement was admitted in evidence without objection and was not limited to the purpose of testing credibility by showing a prior contradictory statement and was identified by the witness as his own statement (see Tr.-90), it therefore can be accepted as proof of its contents; nevertheless said statement merely names the parents of the children and does not inform us that said parents were legally married. Nor does it inform us that the marriage, if any, was not terminated by judicial separation or divorce so as to require enforcement of the minors’ rights through a court-appointed and duly qualified tutor (who might be other than the-father, LSA-Civil Code Articles 157, 221,. see McVay v. New Orleans Public Service,. La.App., 148 So. 67).

While perhaps it might be argued that on the merits — irrespective of the present legal existence of the marriage — the claim of plaintiff father individually for $409 medical expenses incurred on behalf of the minor children, can be recovered on a theory of negotiorum gestio (that is, based upon his liability for said expenses resulting from the management of the minor’s affairs, see LSA-Civil Code Articles 2295-2301 Comment, “Negotiorum Gestio in Louisiana”, 7 Tulane Law Review 253, incurred by him by reason of the fault of defendants), we think it more appropriate to defer discussion of the merits until the entire' claim is before us.

We believe that the interest of justice will best be served if we remand the case to the trial court in order that plaintiff might have an opportunity to try the exception of no right of action first filed in this court, Articles 902, 906, C.P., Weil v. Eastern Airlines, La.App., 52 So.2d 777, Bell v. Holdcraft, La.App., 196 So. 379. See also Spillman v. Texas & Pac. Ry. Co., 17 La.App. 473, 135 So. 66, 68.

It is therefore ordered that this cause be and it is hereby remanded to the Twentieth Judicial District Court in and for the Parish of East Feliciana, for the limited purpose of trying the exceptions of no right and cause of action; that is, of receiving evidence if any the parties have, on the parentage and legitimacy of the minors on-whose behalf these proceedings were instituted and the marital status of their parents. The payment of costs to abide a final disposition of the case.

Remanded.


author: ELLIS, Judge.

text:
    Thomas H. FIKE et al. v. Oswald W. McGRAW et al.
    No. 4228.
    Court of Appeal of Louisiana. First Circuit.
    June 29, 1956.

      Huckabay, Seale, Kelton & Hayes, Baton Rouge, Wm. T. Bennett, Clinton, for appellants.
    Durrett & Hardin, Baton Rouge, Richard H. Kilbourne, Clinton, for appellees.
   ELLIS, Judge.

Plaintiffs; Thomas-H. Fike and his employer, United Trading Stamp Company, instituted this suit against defendants, Oswald McGraw and his insurer, the General Accident Fire and Life Assurance Corporation, Limited, seeking to recove'r the sum of $614.94 for property damage and the sum of $6,582.25 for personal injuries and resulting expenses and disabilities. The damages'claimed: were incurred as a result of an intersectional collision between the truck belonging .to the United Trading Stamp Company and driven by its employee, Thomas H. • Fike and a Dodge automobile owned and driven by Oswald W. McGraw.

Defendants answered, admitting’ the occurrence" of thé collision, but urging that* the proximate cause of the accident was Fike’s negligent operation of his ‘employer’s truck. They also.'reconvened for property damages to the Dodge in the sum of $371.-85.

After trial was had on the merits, judgment was rendered in favor of the plaintiffs allowing the claim for $614.94 to cover the property damage to the truck and $3,817 upon the claims arising out of the personal injury incurred. Defendants’ re-conventional demand was dismissed. From this judgment, defendants have perfected this appeal.

The following account of the occurrence is, in our opinion, substantially correct:

On July 30, 1954, at approximately 11:30 A.M. Thomas H. Fike (hereinafter referred to as “plaintiff”) was driving south on Louisiana Highway 152, a superior thoroughfare. He was in his employer’s Chevrolet panel truck and traveling at a speed between 55 and 60 miles per hour. His son, Glenn, was the only other occupant of the truck. North of the intersection at which the accident occurred is a hill, the crest of which is approximately 630 feet from the intersection.- Plaintiff testified that shortly after clearing the crest of the hill he saw McGraw’s car slowly proceeding in the vicinity of the stop sign on Louisiana Highway 35. The evidence indicates that the first time plaintiff saw McGraw’s car moving slowly toward the intersection the plaintiff was at a point between 630 feet and 315 feet from the intersection, and that he assumed that the defendant would obey the law and stop before entering the intersection.

At this time, McGraw was driving his automobile west on Louisiana Highway 35 and his 12 year old daughter, Lanell, was with him. The preponderance of the evidence indicates that he did come to a stop at a point approximately parallel to the stop sign, which was located 42 feet from the intersection. He then looked both ways and, seeing nothing, proceeded, looking neither to the left nor to the right; into the intersection.

Meanwhile, the plaintiff who had looked to the right after first noticing McGraw, became alarmed as McGraw drove his automobile directly into the path of plaintiff’s truck. The plaintiff applied his brakes and swerved sharply to the right in a vain attempt to avoid the ensuing collision.

The arguments concerning Fike’s distance from the intersection when he first observed McGraw’s automobile are detailed and voluminous. However, it is our considered opinion that the decisive factors are as follows:

Fike was traveling on a through highway at a proper speed under existing conditions. Shortly after clearing the crest of.the hill, he observed the intersection sign and McGraw’s automobile slowly proceeding toward the intersection. He then checked Louisiana Highway 35 to the west. On the other hand, McGraw stopped long before reaching the intersection (at least 42 feet) looked both ways and then proceeded towards the admittedly dangerous intersection without taking any further precautions. Either Fike had not come over the hill when McGraw looked to the right, or McGraw did not observe his presence. In either event, McGraw was guilty of negligence which was the proximate cause of the collision. His partial compliance with the stop sign law was impractical and ineffectual. His unheeding advance into the intersection after a premature halt was obvious negligence.

Stating that, since Fike knew of the intersection, he was charged by law with the knowledge that an intersection was dangerous, defendants cite the following rule set forth in Comeaux v. Blanchet, La.App., 69 So.2d 527, 531:

“ * * * If he is charged with knowledge that a street intersection is a place of danger, and he heedlessly drives into one, without keeping a proper lookout to the left, as well as in front and to his right, then certainly he ought not to complain about a collision which, if he had been exercising ordinary care and caution, he could have avoided.”

However, the facts presented in the cited case differ from those of the case at bar so that any rule evolved in the Comeaux case is inapplicable in the instant case. It is apparent from the record that Fike looked to his left, his right and straight ahead in approaching the intersection.

The rate of speed at which Fike was traveling was questioned by defendants who quoted the following rule set forth in the case of Miller v. Abshire, La.App., 68 So.2d 143, 147:

* * * irrespective of statute, it is the duty of such a driver in the exercise of ordinary care, on approaching or traversing a street crossing, to operate his car at a rate of speed which is lawful and reasonable under the circumstances and to have it under such control so that he may stop it so as to avoid abstractions or objects crossing his path. The question of what, within this rule, is an improper rate of speed and whether the motorist retained the requisite control of the car being one of fact.’ ”

The qualification of this rule is made later in the case in the following language:

“ * * * If, however, the driver on the favored street sees, or in the exercise of due care should see, that the other vehicle neglected to make the stop required by law, he may himself be under the duty of stopping to avoid a collision at the crossing, at the risk of having his recovery defeated by reason of his being contributorily negligent.”

Applying these rules to the facts before the court it is evident that the plaintiff was unaware of McGraw’s intention to enter the intersection until McGraw had done so. At this time, taking into consideration normal reaction time, plaintiff applied his brakes, swerved sharply to the right and made every effort to avoid the collision.

In the case of La Furia v. Tarver, La. App., 86 So.2d 232, neither driver involved .in the- intersectional collision saw the other ..until immediately before the impact. Although it was cited by defendants as authority for the proposition that the vehicle on the superior street has a duty of vigilance when crossing an intersection, it is not in point because again the fact situation is entirely different.

The following principle from the case of Gautreaux v. Southern Farm Bureau Casualty Co., La.App., 83 So.2d 667, 669, seems applicable to the fact situation herein presented :

. “ * ‡ * it does not appear to us, even if Gautreaux observed Mrs. Barrow failing to stop at the stopsign, that he had — thus far having proceeded free of negligence and under no duty up until that time to anticipate the inferior motorist’s failure to observe her legal duty to stop — physical opportunity to avoid the collision. It is to be remembered that Mrs. Barrow’s entry and crossing of the intersection occurred within 1 to seconds. Thus the sole proximate cause of the accident was Mrs. Barrow’s negligent entry onto the main thoroughfare in the face of oncoming traffic, Robbins v. Mydland, La.App. 1 Cir., 81 So.2d 561.”

As stated above, the Lower Court • rendered judgment in favor of the plaintiff for $3,817 which was itemized as follows:

$2,500 for pain and suffering;
100 expenses for son’s assistance during temporary disability;
82.25 medical expenses
134.75 commission to employment agency for securing new employment;
1,000 diminution of earning capacity.

.The record does not substantiate the allowance of $1,000 for diminution of earning capacity nor the allowance of $134.75, commission to the employment agency, for there is no permanent disability claim, and although plaintiff changed his employment shortly after the accident, it appears that he did so of his own free will and not of necessity.- The $100 allowed plaintiff for the expenses incurred while his son accompanied him on the road must also be disallowed since it was not set forth in plaintiff’s petition nor mentioned in his prayer.

For these reasons the judgment of the District Court is amended by reducing it by the amount of $1,234.75 and, as thus amended, it is affirmed.