author: ELLIS, Judge. TATE, Judge LOTTINGER, Judge.

text:
    Lee NEWMAN v. ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE CO.
    No. 4148.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    On Application for Rehearing April 27, 1956.

      King, Anderson & Swift, Thos. C. Hall, Lake Charles, for appellant.
    Carmouche & Martin, Ernest G. La-Fleur, Jr., Lake Charles, for appellee.
   ELLIS, Judge.

Plaintiff filed this suit in which he is seeking workmen’s compensation benefits at the rate of $30 per week beginning January 2, 1954, not to exceed 400 weeks; less compensation previously paid, together with the usual interest and' reasonable medical expenses as a result of an alleged accidental injury on January 2, 1954 while employed by Anderson Brothers Corporation as a laborer. The" suit was filed against the employer’s insurer.

The accident, the compensable nature of the injuries, the disability, the rate of-pay and compensation if any, the amount of compensation previously paid, viz., from January 2, 1954 through September 5, 1954, and that no payments, have been made since the latter date, were all stipulated and admitted. The only contested issues were (1) duration of disability and (2) whether or not plaintiff should be denied compensation for alleged failure to cooperate.

The case was duly tried and with written reasons which contained a detailed discussion of the testimony, the learned judge of the District Court rendered judgment in favor of the plaintiff for an additional five months period “commencing January 2, 1954, and ending January 7, 1956, or 105 weeks, at $30.00 per week; with interest at the rate of 5% per annum on each overdue payment from its due date until paid subject to a credit for the period, January 2, 1954, to September 5, 1954, inclusive.

“It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff and against defendant in the full and true sum of $641.00 with interest at the rate of 5% per annum from judicial demand until paid.

“The fees of the experts Drs. Edmond C. Campbell, George P. Schneider, and George B. Briel, are fixed at $35.00 each and taxed as costs.

“All costs to be paid by defendant.”

A motion for rehearing- was filed based upon the interpretation by plaintiff’s counsel of the case of Whiddon v. Concrete Pipe Products Company, 78 So.2d 439, 440, decided by this court. Counsel argues that this case “stands for the proposition that when it is established that an employee is disabled on the date of trial and moreover that it cannot be definitely stated when he will be able to return to work it is more in keeping with the Legislative intent of the compensation act to place the burden of reopening the case for amendment of judgment, in the event of full recovery, squarely upon the insurer or employer’s shoulders. The whole purpose of the compensation act, we submit, is to remove the losses and expenses incident to industrial accidents from the shoulders of the hapless employee and to place that burden on the - employer who is in a better position to spread the costs of disabling accidents over the general public as one of his expenses of production.”

On rehearing the District Judge granted the motion with the following written reasons : , ,

“This matter is before the Court on an application by plaintiff for a re-hearing from a judgment of this Court granting him compensation for 105 weeks under the provisions of the Workmen’s Compensation Act of this state. Plaintiff complains that the judgment is erroneous in that it did not award him compensation for temporary total disability for the duration of his disability not to exceed 300 weeks. Plaintiff cites the case of Whiddon v. Concrete Pipe Products Company, 78 So.2d 439 (decided by Court of Appeal, 1st Circuit, January 28, 1955) as sustaining his position. On the other hand defendant takes the position that the court is’ correct in its judgment citing Delahoussaye v. D. M. Glazer & Co. [La.App.], 185 So. 644 and Perry v. Louisiana Central Lumber Co. et al., 16 So.2d 136 decided by the Court of Appeal, first and second circuits respectively.
“The Court, in its original decree, made the award of 105 weeks under LSA-R.S. 23:1222 which provides that in cases of injury producing temporary total or tempo* rary partial disability the Court may in its discretion award compensation for a fixed number of weeks based on the probable duration of said disability.
“The Court has read the Whiddon case supra and cannot distinguish it from the case at bar. The Delahoussaye case supra was brushed aside by the Court in the Whiddon case and the Perry case supra was decided by the Second Circuit Court of Appeal.
“We feel that the Whiddon decision has the effect of rendering inoperative the provisions of LSA-R.S. 23:1222. However, since it is the last expression of the First Circuit Court of Appeal we feel bound by it,
“Accordingly, the application for rehearing is hereby granted herein and the original judgment of court in the above numbered and entitled case is amended to read as follows:
“For the written reasons assigned judgment is hereby rendered in favor of plaintiff and against defendant, in the sum of $30.00 per week, beginning January 2, 1954, during disability, not to exceed 300 weeks, with interest at the rate of 5% per annum on each overdue payment from its due date until paid, subject to a credit for the period, January 2, 1954 to September 5, 1954, inclusive.
“In all other respects the original decree in this case to remain in full force and effect.”

From the above judgment the defendant has appealed and the plaintiff has answered asking that he be awarded compensation not to exceed 400 weeks instead of -not to. exceed 300 weeks.-

The only question on the appeal is the duration of plaintiff’s , disability which counsel for defendant in argument and brief s'tates “is a medical one, involving the interpretation and • application of the case of Whiddon v. Concrete Pipe Products Company, Inc. [La.App.], 78 So.2d 439, decided by this Honorable Court on January 28, 1955”.

In the Whiddon case, supra, the lower court had awarded judgment under LSA-R.S. 23:1222 “for a fixed number of weeks to be based upon the probable duration of such disability.” (Emphasis added.) We found as a fact from the testimony that the disability was of indefinite duration, meaning that the testimony did not establish the probable duration of disability required by LSA-R.S. 23:1222.

The lower court also stated that we had brushed aside the case of Delahoussaye v. D. M. Glazer & Co., La.App., 185 So. 644, 645, decided by this court. There was no such intention but only a comparison of the definite nature of the medical testimony adduced as to the probable duration of plaintiff’s disability in the Delahoussaye case as compared to the indefinite duration shown by the testimony in the Whiddon case.

This court could not render inoperative LSA-R.S. 23:1222 as such action would only be in the power of the Legislature. Further, this court has consistently recognized the provisions of LSA-R.S. 23.:1222 and specifically approved and interpreted this act in the Delahoussaye. case, supra, in the following language. .

“The preponderance of the testimony however is 'that' with proper treatment the stiffness in the fingers should disappear and the disability should not continue longer than six months thereafter. One of plaintiff’s own witnesses, Dr. H. B. White, testified to that effect. Dr. Walter Moss, who has had an unusual number of such cases under observation during his several years’ experience at the Charity Hospital in New Orleans, is of the opinion that under proper direction by a physician as how to manipulate his hand he 'should recover its full use in from one to three months time. . • ■ ■ ■
“Under the facts found we think that the district judge was correct in ordering treatment and limiting compensation for an additional six months. * * * In the present case, on the facts presented, we think that the provisions of Subsection 8 of Section 8 of the Act, p. 362, which gives the court a certain amount of discretion in fixing the period of compensation are applicable. The Subsection reads as follows: ‘For injury producing temporary total or temporary partial disability the Court, may in its discretion, award compensation for a fixed number of weeks to be based upon the probable duration of such disability.’
“We take that provision to mean that where the court can reasonably satisfy itself of the probable period of time during which the disability will continue, whether ■ total or partial, it can exercise its discretion as ,did the lower court in this case, in awarding compensation for a specified number of weeks.” (Emphasis added.)

Furthermore, this court, in the same session in which the Whiddon case was argued as well as decided, heard argument on and decided the case of Ebarb v. Southern Industries Company, 78 So.2d 553, 554, in which the third question therein involved. LSA-R.S. 23:1222. A - perusal of this case will show that we gave full recognition to the Statute in question. We held that from the facts ip the.case we could not definitely fix the probable duration of plaintiff’s disability although the testimony was strongly in favor of the finding of the district court. It will be noted that the word “possible” was inadvertently used by the organ of.the court, who is the same in this case, rather .than the word “probable.” It is self-evident that where two cases, were heard in the same session and decided at the same time by the same court on the -same question that we did not intend by one to render inoperative a 'certain law and by the other give it full recognition and validity.'.

It might he well at this point to reach a definite . understanding as to the meaning of' the word “probable” as it refers to the duration of plaintiff’s disability which will he. dependent upon the medical testimony in this case.

We find in Black’s Law Dictionary that the word “probable” has been interpreted to mean the following:

“Having the appearance of truth; having the character of probability; appearing to be founded in reason or experience. State v. Thiele, 119 Iowa 659, 94 N.W. 256. Having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; likely. Barrett v. Green River & Rock Springs Live Stock Co., 28 Wyo. 379, 205 P. 742, 743. Apparently true, yet possibly false. Spadra Creek Coal Co. v. Harger, 130 Ark. 374, 197 S.W. 705.”

We thus see that the word “probable” does not mean that,all doubt is eliminated. An opinion upon any future happening or event is, of course, subject to doubt but may be probable if founded in reason or experience or supported by evidence or apparently true.

Our learned brother below in his written reasons for his original judgment gave a far and sufficient summation of the medical testimony and we quote:

“The evidence discloses that plaintiff suffered a back sprain while working for Anderson Brothers Corporation on January 2nd, 1954. The insurance company adjuster sent plaintiff to Dr. W. C. Fisher, general practitioner at Lake Charles, Louisiana. Dr.’ Fisher in turn sent plaintiff to Dr. George B. Briel, orthopedic physician and surgeon. Dr. Briel had plaintiff’s back x-rayed and the findings were negative. Dr. Briel concluded that plaintiff was suffering from a back strain or torn ligament. He prescribed certain exercises to. be taken by plaintiff but plaintiff did not return to Dr. Briel, but went to Dr. George P. Schneider where he has been going -for treatment ever since.
“Dr. George P. Schneider, orthopedic specialist, had plaintiff under treatment for a long period of time arid stated that plaintiff was progressing well.
“In answer to a.question propounded by attorney for defendant on cross examination as to the extent of duration of disability of Newman, Dr. Schneider answered:
“‘A. In view of Mr. Newman’s status at this time I would prognosticate that in three to five months he should recover with no residual disability.’
' “Dr. George B. Briel has examined plaintiff on several occasions since the first examination, specifically during May and July, 1955. He estimated that plaintiff should be well in from two to three months. He found no pathology in plaintiff’s back, bones or joints.
“Dr. Edmond C. Campbell, orthopedic physician, examined plaintiff on four .occasions on behalf of defendant. He felt that plaintiff suffered from a back strain but had recovered and was able to go to work on his last examination.
“Taking all of the expert testimony together it is evident that plaintiff has suffered a sprained back with no bone injury. Even plaintiff’s doctor, Dr, Schneider, is of the opinion that plaintiff is recovering satisfactorily and that he should be well in from three to five months.
“Plaintiff was injured on January 2nd, 1954, and received compensation until September 5, 1954, inclusive.
“The Court is of the opinion that an award of compensation to plaintiff for an additional five month period would be fair and equitable.”

In addition to the medical testimony, plaintiff testified that although his condition had improved that he felt he was unable to return to his former duties.

Counsel for plaintiff admitted the correctness of the findings of the. lower court as to the conclusions of the doctors who testified in the case with regard to the probable duration of plaintiff’s disability but contend that it is “the same type of speculative estimate of future disability” as was found to exist in the- Whiddon case. They argue that Dr. Briel stated that when he first saw the plaintiff he estimated he would be well in two months from the accident. Dr. Briel, when questioned as to what the length of plaintiff’s disability would be from the time of his initial examination and assuming that plaintiff had followed his prescribed exercises, stated:

“Well, I usually give them about two months. If they have very much tightness of the back I usually give -them .about two months following the time I put them on the exercises in order to recover enough strength in their back to be able to return to their work.”

Dr. Briel further stated that he did not know how much of the exercises the plaintiff took as the latter had told him that they hurt his back and shortly after placing him on such exercises the plaintiff developed an attack of influenza which laid him up. On his examination of May 9, 1955 he stated in his report: “I believe that if he would conscientiously help that within a period of three months he should be able to cure his disability.” On July 29, 1955 Dr. Briel reexamined the plaintiff and from that examination testified as follows on the trial of the case: “ * * * I feel that if he continues with this (meaning exercise and receiving heat treatments) within a period of two or three months he ought to be well able to do-any type of work.”

We interpret Dr. Briel’s testimony to mean that' had the plaintiff followed the prescribed exercises when he first examined him it was his opinion that he would have been well within two months, but it is clear from the testimony that plaintiff did not follow the exercises as he stated they caused him pain and he had developed a case of influenza. Bearing in mind the meaning of the word “probable,” all of Dr. Briel’s testimony, as well as the testimony of the other doctors in this case, goes into detail insofar as giving their reasons for the conclusion upon which the. Trial Judge- based his award of five months-additional compensation. We do not interpret their testimony as being any more-speculative than any event which logic and reason tells us will occur but which is, of course, not certain to occur.

It is therefore, ordered that the judgment of the District Court be set aside and annulled and that the original judgment rendered herein be reinstated, to-wit: that judgment is hereby rendered in favor of Lee Newman and against Zurich General Accident & Liability Insurance Co. commencing January 2, 1954, and ending January 7,-1956 of 105 weeks, at $30 per week; with interest at the rate of 5% per annum on each overdue payment from its due date until paid subject to a credit for the period, January 2, 1954, to September 5, 1954, inclusive. •

It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff and against defendant" in the full and true sum of $641 with interest "at the rate of 5% per annum from judicial "demand until paid.

The fees of the experts, Drs.. Edmond C. Campbell, George P. Schneider, and George B. Briel are fixed at $35 each and taxed as costs, all costs to be" paid by defendant.

It is further ordered, adjudged and decreed that at the end of the five-month period the plaintiff’s right to reopen this proceeding be reserved, even' though the six-month period of LSA-R.S. -23:1331 has not expired.

TATE, Judge

(concurring).

I concur with extremely grave doubts. I greatly fear our interpretation of the statutory provision will create a great hardship for the injured working'man who is plaintiff in this compensation suit.

I am concurring rather than dissenting primarily because the right is reserved to this injured employee to reopen these proceedings immediately, in the event of . continued disability, without being forced to wait until six months after this decree becomes final under LSA-R.S. 23:1331. This reservation might mitigate some (although. by no means all) of the hardships which may be forced upon injured employees by basing judgments on medical guesses (prognoses) as to duration of disability which subsequently prove inaccurate.'

Further, the opinion of this Court seems to hold that, with inclusion of this reservation, appellate courts will not disturb the trial court’s sound exercise of its discretion under LSA-R.S. 23:1222 to award in a proper case compensation for “a fixed number of weeks to be based upon the probable duration of such disability” — if such probable duration is less than six months, Ebarb v. Southern Industries Company, La.App. 1 Cir., 78 So.2d 553; Whiddon v. Concrete Pipe Products Co., La. App., 1 Cir., 78 So.2d 439; see Malone’s Workmen’s Compensation, Section 280.

A corollary of this holding is that we will not disturb the District Court’s discretion in refusing to use medical guesses so as to fix arbitrarily the duration of disability.

It seems to me that in the sound exercise of its discretion, the more proper procedure to follow in cases like this where the medical evidence — insofar as medical guesses can ever be evidence of future duration of disability — indicates a probable recovery in less than the statutory period of six months, is for the District Court to allow the 300 weeks during disability provided for temporary total disability, but reserving the employer the right to reopen at the ends of the, maximum period of probable duration shown by the medical evidence. Thus both the employer and employee would be protected against unfair impositions.

The object of this discretionary power, as well as of the discretionary power under LSA-R.S. 23:1222 to fix compensation during a period of limited duration, is to relieve an employer from the liability of paying workmen’s compensation beyond the actual disability of the employee, if such disability is less than the six months within which normally may be obtained no modification of the decree awarding weekly compensation. No one can quarrel with this valid and fair objective.

On the other hand, when there is conflifct in medical testimony as to duration of disability, the practically unanimous jurisprudence under the Act awards the maximum, whether the conflict be between permanent or temporary total disability, see e. g., Strother v. Standard Accident Insurance Company, La.App. 1 Cir., 63 So. 2d 484; permanent or temporary partial disability, see e. g., Vilce v. Travelers Ins. Co., La.App., 1 Cir., 25 So.2d 256; and between “fixed probable” (less than six months) temporary and indefinite (six months or more) temporary total disability, see e. g., Ebarb v. Southern Industries Company, La.App. 1 Cir., 78 So.2d 553; Whiddon v. Concrete Pipe Products Company, Inc., La.App. 1 Cir., 78 So.2d 439.

Few can quarrel with the objectives of such jurisprudence, in view of the paternal purposes of the Compensation Act, to put in case of doubt the duty to reopen upon the employer, rather than the employee — who otherwise might receive only periodic spurts of compensation, despite unquestioned continued disability. The employer is of course protected from imposition by his statutory right to obtain a modification of the decree if the employee’s condition improves after six months.

If the preferable procedure had been followed in this present case, of course, the defendants would probably have continued to pay compensation, reopening after five months only if the improvement it anticipated occurred — rather than have taken a suspensive appeal which has the effect of depriving this injured workman and his family of income during these five months of admitted disability. Of course, defendants were obliged to cause these hardships in the present case by taking such an appeal, because otherwise they might have had to pay an extra month’s compensation beyond what the law required of them.

But since, after all, we are here concerned not only with general rules, but with a specifically disabled workingman, Lee Newman, it seems to me advisable to see just what application of the ruling represented by the decree of this Court would have done and will do to this employee. At the trial on August 4, 1955, the consensus of the medical prognoses was that Lee Newman would recover within five months. (This trial, of course, is six and one-half months before the date our original opinion herein is rendered, March 20, 1956.)

Before the accident of January 4, 1954, this laboring man was supporting his wife and three children on wages averaging $70-90 per week. He had never before suffered ah industrial accident or drawn workmen’s compensation benefits. Compensation at the. rate of $30 per week was discontinued to,him on. September .5, 1954. The reason appears to have been that his lumbosacral strain did not clear- up according to the original prognosis, “probably due to the obesity and [also] posture of this man’s back,”- testimony of 'Dr. Briel.

Now Dr. Briel, a most competent orthopedist, had initially examined Newman on behalf of defendant insurer on January 29, 1954, then again on February 17, 1954, February 23, 1954, and March 6, 1954. His initial’prognosis of disability was two months additional disability beyond January, 1954. When Dr. Briel examined plaintiff a year later (on March 3, 1955), he estimated yet three month’s further disability, although this was more than thirteen months after his wrong initial guess of only two months’ disability! And when Dr. Briel again saw plaintiff about five months later, on July 29, 1955 he estimated yet another 2-3 months more disability! I say this not in criticism of Dr-. Briel, who appears.to be an exceedingly competent and fair orthopedic witness, but just to demonstrate that medical prognoses are, after all, merely guesses. Such guesses are based on the reaction of usual. such injuries to time and treatment, when by the very fact of its unusual duration the present injury is not a usual injury of its type.

As to the accuracy of such medical prognostications, the other competent orthopedist testifying, Dr.- Schneider, - frankly admitted, Tr-57:

“Q. Dr. Schneider,-your prognosis of the duration of disability is somewhat speculative, wouldn’t you say? A. Definitely.
“Q. In view of Mr. Newman’s long period of disability, don’t .you think that any prognostication of duration of disability in his case would be more speculative in this case than ordinarily would be the situation? A. Following any injury in which there is a prolonged convalescence, the estimation of duration of- disability .usually is rather inaccurate.”

In Lee Newman’s case, if the courts had accepted the initial prognosis, Newman would have been limited to two months’ compensation back in January of 1954, twenty months before the trial at which he unquestionably (under medical guesses) still was disabled for about five months longer after the trial.

Had Newman persisted and secured a reopening, he would have drawn compensation for only two and three months at a time, over the course of the 20 months before trial. The cost of doctors who examined him solely for purposes of trial, and not for treatment, is recoverable neither as medical expenses nor as- court costs, see Cummings v. Albert, La.App., 86 So.2d 727, and of course would have been paid from the portion of his compensation remaining to him after payment of his 20% attorney’s fees.

If his faith still survived that the Compensation Act provided a practical remedy to an injured workingman; and Newman had persist.e4 to t&e point of the present trial; and we had been presented with this same appeal — the effect of our decree rendered today, March 20, 1956, is to award him compensation ending some six or eight weeks ago. If a rehearing or writs of review' are sought, this -judgment will not be final for yet two or three months more. ' If. Newman is still disabled, he can then petition to reopen again, apparently produce the same testimony, receive a similar limited judgment, which if appealed will again force himself and his family to be without income or sustenance for another considerable period of time.

It is hard for me to believe that the remedy envisioned by the Compensation Act should be so interpreted as to cause such results, and it is therefore with great doubt that I subscribe to the decree herein.

It seems to me that the present case falls very closely within the situation presented to us by Ebarb v. Southern Industries Company, 78 So.2d 553, wherein we stated at page 559, Judge Ellis the organ of the court:

“From the facts in this case we can not definitely fix the possible [probable] duration of plaintiff’s disability, although the testimony is ■ strongly in favor of the finding of the District Court, yet the doctors were wrong in their estimate, for plaintiff was still disabled in the opinion of these same doctors on the date of the trial which exceeded the time limit fixed by them upon their first examination of plaintiff. However, all of the doctors were positive in their testimony that plaintiff’s condition is temporary and not permanent and therefore should come under LSA-R.S. 23:1221(1).”

Thus in the Ebarb case,' we held that doctors’ prognostications of duration do not sufficiently prove “probable” duration when such prognostications of an individual’s recovery have earlier been so inaccurate as to indicate their inapplicability to the case in question. The present is distinguished from the Ebarb case only because there is no proof as to Dr. Schneider’s earlier prognostications. Since Dr. Briel recommended a more rigorous regime than Dr. Schneider, perhaps the record can be construed to indicate that Newman’s failure to recover as promptly as predicted by Dr. Briel results, not from mistaken estimations by him, but from Dr. Schneider’s less painful and more conservative treatment. In other words, the record might be interpreted to indicate that Newman is progressing toward full cure under Dr. Schneider’s treatment according to Dr. Schneider’s schedule.

I may add that should Newman present to us with his application for rehearing within the legal delay period medical reports indicating continued disability, under a policy we have previously followed the proceedings would be remanded for additional medical testimony, Vilce v. Travelers Ins. Co., La.App. 1 Cir., 18 So. 2d 243, approved by implication in Wade v. Calcasieu Paper Company, Inc., 229 La. 702, 86 So.2d 540; see also Betz v. Travelers Insurance Company, La.App. 1 Cir., 68 So.2d 666; Barnes v. American Mutual Liability Insurance Company, La. App. 1 Cir., 62 So.2d 843; McClung v. Delta Shipbuilding Company, La.App., 33 So.2d 438. This of course is one more reason why the more appropriate decree herein would be to allow compensation during disability, not to exceed 300 weeks, reserving unto defendants-appellants the right to reopen any time after five months from date of trial.

For the reasons and with the reservations above assigned, I presently subscribe to our decree herein.

On Application for Rehearing.

LOTTINGER, Judge.

On application for rehearing counsel for plaintiff filed an alternative motion that this case be remanded to the lower Court for the taking of evidence on the question of the duration of Mr. Newman’s disability and the estimates thereof. In the application and alternative motion he states as follows:

“The crux of this case revolves around the question of how much probative value should be given to medical estimates of duration of disability. At the original trial of this case, plaintiff proved that Dr. Briel had made several prior erroneous estimates of Mr. Newman’s disability. Dr. Schneider, on the other hand, testified that such estimates are definitely speculative, and that, moreover, they are even more speculative in cases such as that of Mr. Newman, in which there has been a prolonged convalescence. We had though this evidence would have been easily sufficient proof of the probable inaccuracy of the estimates of disability made by Drs. Briel and Schneider at the trial of this case. Perhaps in not having more fully developed the evidence of prior estimates, we should assume some responsibility for your decision. However, in an effort to more fully develop the history of Dr. Schneider’s prognoses in this case, we have rounded up originals of all of Dr. Schneider’s previous written reports, and we quote herewith from excerpts of those reports, as follows:
“As of March 20, 1954, Dr. Schneider made the following prognosis:
“ T feel that under a continued conservative routine of treatment he should respond satisfactorily and be able to resume active gainful employment in a period of 3 to 4 months with no residual disability. During the period of convalescence I feel that he will be totally disabled from resuming the type of heavy manual labor in which he was engaged at the time of his initial injury.’
“As of June 14, 1954, Dr. Schneider made the following prognosis:
“ ‘My impression of this patient at this time following re-examination is that he is still suffering from a symptomatic tear of the fifth lumbar inter-spinous ligament and that he is still totally disabled from resuming his previous type of heavy manual labor. I therefore feel that his disability period will extend approximately another three months, barring any complicating factors, but that eventual full recovery should take place with no residual disability.’
“As of November 23, 1954, Dr. Schneider made the following- prognosis :
* * * it is my impression that in spite of an expectéd completion of convalescence by this date that he is not completely convalesced and this period will probably extend another 3 months.’
“As of January 4, 1954, Dr. Schneider made the following prognosis :
“ ‘I feel that his disability period may be prolonged somewhat over my previous prognostication and will probably be at least another 8 to 12 weeks before he is able to resume his usual type of employment. I feel, however, at the end of that time that he should be able to, resume the type of employment in which he was engaged at the time of ■his injury with no residual disability.’
“As of May 23, 1955, Dr. Schneider made the following prognosis:
“ ‘I do not feel that there is any doubt but Mr. Newman is considerably improved as compared to, let us say two or three months ago but I feel that his convalescence will probably continue at least another three months in spite of my previous impression to the contrary. I feel that once satisfactory resolution has taken place that he should be able to resume his previous type of gainful employment without any evidence of residual disability.’
“The original reports from which these excerpts have been taken are attached hereto and marked Appellate Exhibits ‘A’, ‘B’, ‘C’, 'D’, and ‘E’, respectively. At the trial of Mr. Newman’s case, Your Honors will, recall that Dr. Schneider found Mr. Newman disabled and predicted he would be well in from three to five months. Since the trial, Dr.. Schneider has continued to treat Mr, Newman, and ^..s, you may see - from his most recent report, dated March 29, 1956, the original of which is attached hereto as Appelr. late Exhibit ‘F’, Mr. Newman’s disability has endured beyond ■ the five months last estimated by Dr. Schneider, and that Mr. Newman was, as of the date of this report, still disabled. The remainder of the report is self-explanatory.
“A review of the above referred to prognoses made by Dr. Schneider discloses that every single prior estimate made by him has been proven inaccurate.”

'Exhibit F which is attached to the motion and not quoted hereinabove is partly as follows:

“Since my previous communication to you Mr. Newman has continued under my care and has been examined on repeated occasions and seen at this office for further follow-up at intervals. He was last seen at this office on March 26, 1956, at which time he stated that he had been increasing his activity and doing quite well except for some soreness in his low back. He stated he had reached the stage where he could keep his brace off when about the house for as long as the entire day and did quite well without it as long as he did not attempt any prolonged walking or any lifting. He still showed findings of localized tenderness over the fifth lumbar interspino.us ligament and the patient stated that as a result of examination this was the only place where he had discomfort.
“In my previous letters to you I have made repeated prognostications as to duration of disability in this particular patient and have .found after further follow-up that they have not been accurate. We find a certain percentage of individuals in whom convalescence is prolonged for a longer period of time than we usually expect and I feel that Mr. Newman falls in this category. There is no doubt in my mind about Mr. Newman’s continuing to be disabled but I feel that he is slowly but surely progressing toward rehabih-ation and that recovery should take place with no residual disability. I feel that his disability period is indefinite as of this date but that I would again prognosticate at this time that Mr. Newman’s disability period will probably extend at least another 6 months. I do not feel that there will be any residual disability following his recovery and that he should be able to resume his previous type of gainful employment.”

It is to be noted that this report addressed to counsel for plaintiff is dated March 29, 1956 and signed by Dr. George P. Schneider. As a matter of fact, all of the Exhibits hereinabove referred to are the original reports and signed by the said doctor.

It is strange that the information contained in said reports prior to Exhibit F was not brought out during the trial in the examination of Dr. Schneider, and we feel reasonably sure that if same had been, brought out as evidence that this case would fall within the rule as enunciated in the case of Ebarb v. Southern Industries Company, La.App., 78 So.2d 553, 554. Be that as it may however, the most definite testimony that Dr. Schneider gave as a witness in this case is as found on Page 54 of the transcript which is as follows:

“Q. What is your best estimate as of this time as to how much longer it will be before Mr. Newman has completely recovered and is able to go back doing physical labor? A. In view of Mr. Newman’s status at this time I would prognosticate that in three to . five months he should recover with no residual disability.
“Q. And would be able to go back to the same type of work he was doing before this accident? A. That is correct.”

According to Dr. Schneider’s testimony as found in the record, the lower Court originally extended the compensation payments to January 7, 1956. However, it is pertinent to note that Exhibit F is, dated March 29, 1956 and .a time extending beyond the date originally stated that this plaintiff would be physically able to resume his duties.

According to Article 906 of the Code of Practice and according to the cases of Vilce v. Travelers Insurance Co., La.App., 18 So.2d 243 and Betz v. Travelers Insurance Co., La.App., 68 So.2d 666:

“If the court shall think it not possible to pronounce definitely on the-cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, . remand the ■cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may'decide according to law.”

In view of the fact that this is a workmen’s compensation case where the court is called upon to apply liberal rules of procedure, and in further view of the fact of the information attached to the alternative motion for remand, we are of the opinion that this case should be remanded to the lower Court so that substantial justice can be rendered.

For the reasons stated, it is ordered that the' original judgment and decree herein handed down on March 20, 1956 be and the same is hereby voided, set aside and annulled and it is further ordered that this case be now remanded to the Fourteenth Judicial District Court of the State of Louisiana, in and for the Parish of Cal-casieu, for the purpose of having taken and placed in the record all available testimony as may be produced by either side regarding the piaintiff’s ability or disability, as .well as duration of said disability, to do and perform hard manual labor, and that this case be disposed of according to law.

All costs of this present appeal are to be paid by the defendant and all other costs to abide the final determination of the suit. The defendant is hereby granted the right to apply for a rehearing from this decree rendered herein. -

•Case remanded to lower court;

      . Our opinion herein recognizes the discretionary power of our District Courts to permit to either party in proper circumstances the reservation of the right to reopen the proceedings within less than the six months provided by LSA-R.S. 23:1331, see also dicta to same effect, Rogers v. Thermatonic Carbon Co., 157 La. 193, at page 198, 102 So. 304 (Contra: Mays v. Allison & Langston Supply Co., 5 La.App. 686.). The statutory provision simply provides that courts shall after six months permit the reopening of proceedings. As our opinion herein holds, this mandatory duty does not exclude the exercise of a discretionary power to permit reopening in less than six months.

      . Cf. Mr. Justice Odom’s disapproval of the use of such “bald guesses” and “speculation” to fix a “definite period of disability”, when serving as organ of the Second Circuit, O’Donnell v. Fortuna Oil Company, 2 La.App. 462, at page 464:
      ' “The admission that plaintiff’s recovery within a certain length of time is only ‘probable’ and the statement that according to the law of probabilities he will recover the full use of his hand within five months from the date of the trial, is absolutely fatal to counsel’s contention.

        “The court must not speculate as to how long a person will he disabled. The greatest experts in the land cannot tell how long it will take a wound to heal. They can no more do that than a surgeon can tell whether an operation will prove fatal or be a success. Any opinion which might be given by a physician as to how long a patient will be disabled from, a certain wound or condition of a member of the body would necessarily be speculative. An expert might be able to guess more accurately thorn a layman, but his opinion would be a guess after all.” (Italics mine.)


source: Caselaw Access Project

author: HARDY, Judge.

license: Public Domain

text:
    Truman SMITH et al., Plaintiffs-Appellees, v. James COOPER, Defendant-Appellant.
    No. 8454.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    James Sharp, Jr., Monroe, for appellant.
    Armand Rabun, Farmerville, W. Decker Moore, West Monroe, for appellees.
   HARDY, Judge.

This is a summary proceeding instituted by plaintiffs, in conformity with LSA-R.S. 13:4918, in which they seek to evict the defendant, allegedly plaintiff’s tenant, from property in Ouachita Parish, Louisiana. From a judgment in favor of plaintiffs condemning defendant, to vacate the premises described, defendant has prosecuted this appeal.

We find it necessary to give our consideration, ex proprio motu, to the question of jurisdiction with respect to the instant appeal. Plaintiffs’ petition prays for judgment ordering defendant to vacate the leased premises, and further judgment for the accrued unpaid rental in the sum of $100 representing past due and unpaid rent for two years at the rate of $50 per year. It is noted that although the written opinion of the district judge concluded the judgment should be rendered for plaintiffs “as prayed for”, the judgment is silent with reference to any decree for the payment of rent, and from this judgment plaintiffs have neither appealed nor have they answered the appeal taken by defendant.

Appellate jurisdiction of the courts of appeal is fixed 'by Section 29 of Article VII of the Constitution, LSA, which provides:

“The Courts of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and probate, of which * * the District Courts throughout the State, have exclusive original jurisdiction, regardless of the amount involved, or concurrent jurisdiction exceeding one hundred dollars, exclusive of interest * * *.” (Emphasis supplied.)

Section 48 of Article VII of the Constitution provides:

“Justices of the peace shall have concurrent jurisdiction with the District Courts in all civil matters when the amount in dispute shall not exceed one hundred dollars, exclusive of interest, including suits for the possession or ownership of movable property not exceeding said amount in value, and in suits of landlords for the possession of leased premises, where the monthly or yearly rent, or the rent for the unexpired term of the lease, does not exceed said amount.”

It is clear that since the amount here involved did not exceed $100, and the district court had concurrent jurisdiction with justices of the peace, this court is without jurisdiction. Tremont Lumber Co. v. Lacas, La.App., 62 So.2d 665.

For the reasons assigned the appeal is dismissed at appellant’s cost.


text:
    Mrs. Nola Bunn SMITH et al., Plaintiffs-Appellants, v. Frank MIMS, Defendant-Appellee.
    No. 8501.
    Court of Appeal of Louisiana. Second Circuit.
    April 19, 1956.
    W. T. Holloway, Jonesboro, for appellants.
    Dhu & Lea S. Thompson, Monroe, for appellee.
   HARDY, Judge.

This is a suit on a chattel mortgage note dated January 8, 1952, executed by defendant, payable December 1, 1952, in the principal sum of $1,328.27, and secured by a chattel mortgage on a Ford tractor and other farm implements described therein. The seven plaintiffs, alleging themselves to be the sole heirs of James Marion and Minnie Dozier Bunn, deceased, prayed for judgment on the note in the principal sum set forth, with interest and attorney’s fees; further prayed for recognition and enforcement of their lien and chattel mortgage on the property described, and for a deficiency judgment in the event sale thereof did not realize the full amount of the debt. Defendant answered, alleging the surrender of the mortgaged tractor in consideration of the release of his indebtedness, and particularly pleading estoppel against plaintiffs; further praying for reservation of his rights to sue for damages resulting from plaintiff’s action. After trial there was judgment in favor of defendant rejecting plaintiffs’ demands and reserving his rights as prayed, from which judgment plaintiffs have appealed.

There is no doubt about the execution of the note 'and mortgage upon which this suit was predicated, hut an instrument introduced and received in evidence on trial, which constitutes the substance of the defense, reads as follows:

“Eros Louisiana
“Feb 26 1954
“This is to certify that Frank Mims has released one Ford tractor and all equipment less one battery. In charge of L. M. Bunn and also that I, Mrs. Ray Thornton was a witness to this.
“(S) Mrs. Ray Thornton
“(S) L. M. Bunn
“This is to release the indebtedness against the tractor that Frank owed for.
“(S) Cynthia Bunn Thornton
“(S) L. M. Bunn
“Witness:
“(S) Mrs. Leila G. Harper.”

L. M. Bunn and Cynthia Bunn Thornton are two of the seven plaintiffs who brought this suit, which was filed March 1, 1955, slightly more than one year after the execution of the above quoted agreement. On trial the following admission was entered in the record by counsel for plaintiffs:

“I would like to file on behalf of the parties Cynthia Ray or Cynthia Thornton and L. M. Bunn an admission that the signatures on the original instruments are their true and genuine signatures.”

It is apparent that this admission refers to the receipt and release above set forth.

Before this court counsel for plaintiffs contend that Bunn and Mrs. Thornton had no authority from their co-heirs to make collections nor to execute settlements of debts due the succession, being co-owners of such properties of which the heirs had been sent into possession by judgment in the successions of their deceased parents; that, consequently, a release granted by some of the heirs could not bind the others, and, finally, that the other plaintiffs, being unaware of the action of their co-heirs, were neither bound nor estopped by such action.

There would be better ground for the urging of these contentions were it not for the fact that the testimony of the only two of the parties who appeared on trial, Mrs. Nora Bunn Smith and Mrs. Amy Bunn Greer, clearly establishes the fact that they subsequently acquired knowledge of the transaction between their two co-heirs and the defendant, and that they knew the tractor was in the possession of one or both of their said co-heirs. We think it unimportant whether the action was taken with the foreknowledge and consent of the coheirs of the two parties responsible, or whether knowledge of such action subsequently acquired became the basis for an implied ratification by acceptance and inaction. The effect is the same. We think it worthy of comment that the two parties who executed the agreement with this defendant did not appear on trial of the case, although counsel for plaintiffs informed the court that their presence had been requested. Nor were any other of the parties plaintiffs called as witnesses.

Counsel for plaintiffs concede the recognized principle that where one of two parties must suffer, the innocent party is entitled to protection, but urged that the defendant has not appeared with clean hands because of his admission

“that he was informed by the other heirs that he was not released from the debt, which information was given to him shortly after the instrument was signed and had made no attempt to protect himself.”

We do not believe the quoted argument is valid, nor is it sustained by the facts, which do not justify the conclusion that defendant received any such information shortly after the transaction, nor that the information was understandably conveyed and expressed. Counsel does not elaborate upon just what procedure defendant could have taken for his own protection under these circumstances.

Iiiiplicit in the record is the fact that the plaintiff - heirs more or less engaged in settlement of the succession properties and that friction developed among themselves as the result thereof. The record fails to disclose just how the disagreements and difficulties were resolved and what specific method and procedure for settlement of obligations due the estate was finally adopted. These matters, however, are not material to a determination of the issue here presented.

We think the facts abundantly suffice to support defendant’s plea of estoppel, as well as the defense of settlement and release.

Counsel for plaintiffs complains particularly of that part of the judgment reserving defendant’s rights to proceed for damages as against all the parties plaintiff, contending that, at best, defendant’s only rights in tliis respect would lie against L. M. Bunn and Cynthia Bunn Thornton, who were directly concerned with the transaction with plaintiff. In the condition, of the record, due to the paucity of evidence on this point, we cannot say that the district judge erred in this respect. It is clearly ..shown, by what little testimony is available from the record, that some, if not all other, of the heirs had knowledge of the acts of Bunn and Mrs. Thornton before the institution of this suit. Whether deféndant has suffered any real damage, and, if so, against whom he is entitled to proceed, are matters with which this case is not concerned.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: HAMITER, Justice.

text:
    229 La. 934
    STATE of Louisiana v. Everett VERRET and Huey John Ohmar.
    No. 42702.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    Blanchard & Blanchard, C. A. Blanchard, F. A. Blanchard, Donaldsonville, for defendants.
    Fred S. LeBlanc, Atty. 'Gen., M. E. Culli-gan, Asst. Atty. Gen.; L. O. Pecot, Dist. Atty., Nathan A. Levy, Jr., Asst. Liist. Atty., Franklin, for appellees. '
   HAMITER, Justice.

A bill of information filed by the district attorney for the Parish of St. Mary charged that Everett Verret and Huey John Ohmar, on August '5, 1955, “Possessed a device manually controlled and operated, without explosives, under circumstances which indicated that said possession was for the purpose of illegally taking commercial fish, in violation of the provisions of LSA-R.S. 56:366 of the State of Louisiana * * To it the defendants tendered two separate motions to quash. :

In the first motion they urged that the statute under which the charge was made, Act 194 of 1952 which amended LSA-R.S. 56:366, is violative of Article.3, Section 16 of the Louisiana Constitution, LSA because: (1) it embraces more than one object and .(2) the title thereto is not broad enough to include the denounced offense of possessing- a prohibited device.

In the second motion to quash they contended that the provision of the act prohibiting possession under certain circumstances is violative, of constitutional Article 1, Section 10 in that the definition of the offense is vague and indefinite and leaves to the district attorney and to the courts the duty, which properly belongs to the Legislature, of determining what acts constitute the crime.

The trial judge sustained the first motion to quash on the theory, as his written reasons disclose, that the title to Act 194 of 1952 did not provide for the crime of possession as denounced in the body thereof and, hence, to that extent such statute is unconstitutional and unenforceable. He did not pass on the issue raised by the second motion to quash. The state is appealing from the judgment.

In view of the fact that the defendants have not been convicted and since under the statute a penalty of death or imprisonment at hard labor could not be imposed herein (in the event of conviction) we have jurisdiction of the appeal solely because “a law of this state has been declared unconstitutional.” Article 7, Section 10 of the Louisiana Constitution. And our inquiry is limited to the specific issue on which the declaration of unconstitutionality was predicated. State ex rel. Chehardy v. New Orleans Parkway Commission, 215 La. 779, 41 So.2d 678. The mere attacking of a statute does not of itself vest this court with jurisdiction. Knobloch v. 17th Judicial District Democratic Executive Committee, 225 La. 491, 73 So.2d 432 and City of New Orleans v. Ryman, 225 La. 1092, 74 So.2d 386. 'Consequently, the contention made in defendants’ second motion to quash, which was undetermined by the trial judge, is not before us for consideration.

Article 3, Section 16 of the Louisiana Constitution of 1921, as amended, held by the district court to have been violated in the enactment of Act 194 of 1952, provides in part: “Every statute enacted by the Legislature shall embrace but one object, and shall have a title indicative of its object.”

In interpreting such constitutional provision in its relation to statutes generally this court observed in Jackson v. Hart, 192 La. 1068, 190 So. 220, 221, as follows: “ * * * Under corresponding sections in preceding constitutions, it was required that the object of the law be ‘expressed’ in its title. The effect of the changing of the wording of the constitutional provision was to relax the previous requirement that the statute must ‘express’ its object, so now all that is required is that the title of the statute should be ‘indicative’ of its object. The constitutional provision must be construed broadly rather than narrowly with a view of effectuating, not of frustrating, the legislative purpose. This is the rule prevailing everywhere for the construction of such a constitutional provision. In State v. Martin [192 La. 704] 189 So. 109, 110, recently decided, this Court quoted and approved the statement of the prevailing rule announced in Corpus Juris, volume 59, page 809, * * *. In the Martin case, the Court also referred to and reaffirmed the well settled rule of this State that, whatever is germane and incidental to the purpose may be set out in the title, but if the body of the act embraces cognate matter not strictly within the text of the title, such matter will, nevertheless, be covered by the title. Since the means adopted to carry out a law is not an object of the law, such means need not be mentioned in the title. Marr’s Crim.Juris., vol. I, pp. 11, 12.” See also Peoples Homestead & Savings Association v. Masling, 185 La. 800, 171 So. 36; Peck v. City of New Orleans, 199 La. 76, 5 So.2d 508; Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49, and Womach v. Varnado, 204 La. 1019, 16 So.2d 825.

Furthermore, it has been held that in amending and reenacting prior legislation the Legislature could, without violating the discussed constitutional provision, incorporate new matter that is germane to the object of the amended statute without the necessity of detailing it in the title of the amending act. State v. McBrayer, 188 La. 567, 177 So. 669; State v. Shadions, 198 La. 770, 4 So.2d 823; Succession of Pipitone, 204 La. 391, 15 So.2d 801 and Bethlehem Supply Co. v. Pan-Southern Petroleum Corporation, 207 La. 149, 20 So. 2d 737.

The title of Act 194 of 1952, which is assailed herein, recites: “To amend and re-enact Section 366 (as amended by Act 493 of 1950), of Title 56 of the Louisiana Revised Statutes of 1950, relative to the method of taking commercial 'fish, by prohibiting additional illegal methods of taking these fish; and Section 384, of Title 56 of the Louisiana Revised Statutes of 1950, relative to penalties, by providing increased penalties, at the discretion of the Court, for violations by the use of illegal methods of taking fish.”

And the body of the statute, in addition to providing for the mentioned penalties, states: “Be it enacted by the Legislature of Louisiana:

“Section 1. That Section 366 (as amended by Act 493 of 1950), and Section 384, of Title 56 of the Louisiana Revised Statutes of 1950, are hereby amended and reenacted to read as follows:
“366. Commercial fish may be taken with any pole and line or hand line; or with any trot line wherein hooks are not less than twenty-four inches apart. No person shall take these fish by means of spears, poisons, stupefying substances, explosives, guns, bows and arrows, or traps (including lead nets and tree-topping devices) except a barbless spear used in salt water for taking flounders. Tree-topping and other identical or similar devices for trapping fish, as well as other methods and devices set out in the preceding sentence of this section are illegal, and a violation of this Act. No person shall take these fish by means of artificially or electrically controlled or operated devices mechanically and/or manually operated with or without explosives. It shall be unlawful to possess any of the prohibited instruments, weapons, substances or devices set out hereinabove, under circumstances which indicate that said possession is for the purpose of illegally taking commercial fish.”

Clearly such provisions, as well as those of the Revised Statutes sought to be amended, reveal that the purpose of the legislation was to regulate the manner and conditions respecting the taking of commercially valuable fish. This being true it can only be concluded that the law embraced but one object. And the several prohibitions and other regulations therein recited (including the denounced possession of outlawed devices) are germane to, and they merely serve as means for carrying out, the purpose and the object. Hence, the statute is not vulnerable to the attack of defendants that the title is not broad enough to include the defined offense with which they are charged.

For the reasons assigned the judgment appealed from is reversed and set aside, the motion to quash sustained by the trial judge is now overruled, and the case is remanded for further proceedings according to law.

SIMON, J., absent.


author: HAWTHORNE, Justice.

text:
    229 La. 942
    Mrs. Marguerite Sassoon OHANNA v. Ahollab OHANNA, also known as Al Ohanna.
    No. 42274.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Richard Dowling, New Orleans, for appellant.
    Racivitch, Johnson, Wegmann & Moule-doux, William J. Wegmann, New Orleans, for appellee.
   HAWTHORNE, Justice.

This is an appeal by Aholiab Ohanna from a judgment granting to his wife an absolute divorce on the ground that the couple had been living separate and apart for more than two years.

Besides awarding to the wife an absolute divorce, the judgment appealed from dissolved the community of acquets and gains formerly existing between the parties, gave to the wife the custody of two minor children born of the marriage, ordered the defendant to pay alimony to the wife in the sum of $25 per week for her support and $30 per week for the support of the children, and perpetuated a preliminary injunction previously issued which enjoined the defendant from disposing of, mortgaging, or alienating the community property except as modified by orders of the court. The husband appeals from this judgment only “insofar as it decrees a divorce”.

At the time the wife instituted this suit for an absolute divorce on the ground of two years’ separation, there was pending in the district court a suit instituted by her for separation from bed and board on the ground of cruelty, which had been filed on March 10,' 1952. The suit for separation was bitterly contested, numerous pleadings were filed in it, and rules for the fixing of alimony, for contempt, etc., were tried. This separation suit was consolidated with the instant suit for divorce, and after trial of both suits on the merits the judgment appealed from was rendered.

After the wife’s suit for separation from bed and board had been pending approximately two years, the husband on January 11, 1954, filed a suit to have his wife interdicted on the ground of mental incapacity. On November 9, 1954, the lower court rendered judgment dismissing the husband’s suit for interdiction, and from that judgment he has appealed. That appeal is fixed for hearing in this court on April 5, 1956 (our docket No. 42,233).

While the husband’s suit for interdiction was pending, the wife on March 26, 1954, instituted the instant suit for an absolute divorce, which was consolidated with her suit for separation from bed and board, as stated above.

In his answer to the divorce suit the husband first excepted, seeking to have this suit stayed until final determination of the interdiction suit, which was then before another division of the Civil District Court for the Parish of Orleans. In the exception he alleged that plaintiff was without capacity to bring the divorce suit because interdiction proceedings were pending against her. He never urged this exception, however, it was never tried, and no ruling was made ón it by the trial judge.

After the instant appeal in the divorce suit was placed on the docket of this court and fixed for argument, the husband filed a motion praying that the argument be postponed, and that this appeal be consolidated and heard with the appeal in the interdiction suit fixed for April 5. This motion was denied.

In arguing the merits of the instant appeal the husband does not contend that the judgment of the lower court granting his wife an absolute divorce is erroneous. He does not point out any error of law or of fact in the judgment of the district court except to allege that plaintiff should not have been granted a divorce while her sanity was under attack. Moreover, he argues that we should postpone taking any action in this appeal until the interdiction suit has been1 finally decided by this court.

Appellant has advanced no valid reason, legal or otherwise, why we should delay our decision in this divorce proceeding. His wife’s mental capacity is not an issue in this proceeding, was never urged in or passed upon by the lower court, and is therefore not before us on this appeal. Furthermore, his suit to have his wife interdicted was dismissed in the lower court.

We realize that a person interdicted for mental incapacity cannot prosecute a suit and stand in judgment. Moreover, we recognize that if this court should reverse the judgment of the lower court in the interdiction proceedings and interdict the wife, the interdiction would take place, under Article 400 of the Louisiana Civil Code, from the date of the presentation of the petition for interdiction. However, a reversal of the lower court’s judgment dismissing the interdiction proceedings is at this time highly uncertain and problematical, and this remote possibility cannot be a reason for postponement of our decision in the present case. In the event the wife should be interdicted in the pending suit, the validity of the judgment in the instant case can be determméd later in! a- proper proceeding: See C.C. art. 401.

The judgment is affirmed at appellant’s costs. .


author: PONDER, Justice.

text:
    229 La. 947
    Francis H. CONLEY et al. v. STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS et al.
    No. 42340.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Ferris & Achee, Shreveport, for plaintiff s-appellants.,
    W. Crosby Pegues, Jr., D. Ross Banister, Philip K. Jones, Louis S. Quinn, Glenn S. Darsey, Baton Rouge, Francis X. Vinet, New Orleans, for defendants-appellees.
   PONDER, Justice.

In this suit the plaintiffs are asking for a prohibitory and mandatory injunction ordering the defendants to remove that portion of the highway construction from their alleged property, to be quieted in their possession and to be adjudged the owners of the property in dispute. The defendants excepted to the petition on the ground that it disclosed no right or cause of action in that plaintiffs were not entitled to injunctive relief, and interposed an answer denying that they had encroached on plaintiffs’ property. The lower court sustained the exception of no right or cause of action on the ground that after the Department of Highways has constructed a highway over a tract of land that the landowner is limited to an action for damages. The case was tried on its merits in order to determine the ownership of the property in dispute. After hearing, the trial judge gave judgment dismissing plaintiffs’ demands and they have appealed.

It appears from the record in this case that the defendants acquired a right-of-way deed from Paul R. Walker on September 4, 1952 in contemplation of the construction of the Youree Drive Extension of the Shreveport Highway. Thereafter, on December 29, 1952, the plaintiffs bought a certain tract of land from Paul R. Walker over a portion of which the highway right-of-way traversed. The dispute in this case is the location of the right-of-way.

The plaintiffs concede that their subsequent title from the common author, Paul Walker, is burdened with the right-of-way but they contend that the right-of-way is improperly located so as to encroach on plaintiffs’ other property. While, on the other hand, the defendants contend that the right-of-way is properly located in conformity with their deed.

We have examined the evidence in this case and find that there is a dispute between the surveyor for the Department of Highways and the surveyor for the plaintiffs as to the location of the right-of-way. If the survey made by the surveyor for the Department of Highways were to be accepted, the highway is properly located. If the survey of plaintiffs is accepted, the right-of-way is not properly located and encroaches on plaintiffs’ property.

The right-of-way is described by metes and bounds and commences at a point which is the northwest corner of Lot 10. It is impossible to determine whether or not there is an encroachment without establishing the section line between Sections 5 and 6 as concluded by the district judge. It appears that no markers were found that had been established by the United States Government when the section lines were originally laid out. The trial judge was of the opinion that the conflict of the evidence was such that it was impossible to determine the location of the right-of-way without first establishing the section lines as laid out by the United States Government, and it would cost more that the amount in dispute to properly locate the right-of-way.

From our appreciation of the evidence, the plaintiffs have failed to establish with any degree of certainty that the right-of-way encroached on their property, but we feel that their suit should be dismissed as of non-suit in order to permit them, if they can or so desire, to bring appropriate proceedings to have the property lines established.

For the reasons assigned, the judgment of the lower court is amended so as to dismiss the plaintiffs’ suit as of non-suit, and as thus amended the judgment is affirmed at appellants cost.


author: MOISE, Justice.

text:
    229 La. 951
    Succession of Mrs. Fannie MAYER, Widow of Samuel Wolf.
    Nos. 42297, 42305.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    Roos & Roos, New Orleans, for defendant-appellant.
    Driscoll & Flannagan, New Orleans, for appellees.
   MOISE, Justice.

Mrs. Fannie Mayer, widow of Samuel Wolf, died on November 15, 1954, leaving a last will and testament drafted under Act 66 of 1952, LSA-R.S. 9:2442-9:2444, which reads in part:

“ * * * I name Irwin W. Rosen-thal the executor of my estate, with seizin and without bond.
******
“I do give and bequeath unto Irwin W. Rosenthal all my interest and ownership in and to the following real estate:
******
“I bequeath unto the following the following sums:
To Congregation Temple Sinai, One thousand Dollars.
To. Rabbi Julian Feibleman one thousand Dollars.
To. Dr. Sam Hobson, my doctor, One thousand Dollars.
To Mrs. E. Lagarde Five Hundred Dollars.
To Dora Mason, my cook, and friend Five Thousand dollars, my living room set, Victrola and records, one-half of my sheets towels and linens.
To Ethel Lee, my maid, and friend, Five Thousand Dollars, the contents of the front bed room of my residence comprising furniture furnishings, ornaments, and the other one-half of my sheets, linens, and towels.
To Sophie Welsch my grand-niece, Three thousand Dollars.
“The above special bequests of money are to be free of taxes as I instruct my executor to pay them out of my estate.
“I give - and bequeath unto Jonas Simon, my nephew, Twenty-five thousand Dollars.
“I bequeath the following sums to the following, To Beulah Jones, My washer woman, five hundred Dollars; to Dr. Maurice S. Rosenthal, my nephew, five thousand Dollars; To Evergreen Sunshine Society (Home for Incurables, I bequeath Two hundred fifty dollars. To Miriam Chapter, Order of Eastern Star Two' hundred fifty dollars; to Shrine Hospital, Shreveport, La., Two hundred fifty dollars; to Henry Jacobs, Organist at Temple Sinai Two hundred fifty dollars; and I bequeath to Lou Welsch, Jr., grandnephew, Three thousand Dollars. To Dr. Sam Hobson, my doctor, four thousand dollars in addition to the one thousand mentioned above, so as to make my total bequest to Dr. Sam Hobson Five thousand Dollars.
“I bequeath the entire balance of my estate unto Irwin W. Rosenthal.
******
Codicil
“ * * * I make this codicil to my last will. I instruct that the bequest to Dr. Sam Hobson of five thousand Dollars is to go to him free of taxes and expenses. In all other respects my last will of August 26th, 1954 is to stand as written. Fie is to receive $5,000.00 altogether. * * * ”

The testamentary executor rule the legatee, Jonas Simon, to show cause why his lagacy of $25,000 should not .be diminished by $1,333.30 for his prorata of the succession debts, $4,320.14 for his prorata of Federal Estate Taxes, and $1,300 Louisiana State Inheritance Taxes. The trial court made the rule absolute for the Louisiana State Inheritance Taxes and dismissed it as to the proportionate debts o>f the succession and as to the Federal Estate Taxes.

Jonas E. Simon then ruled the executor to show cause why his legacy should not be delivered to him, less only the amount due for the Louisiana State Inheritance Taxes. This rule, was, likewise, made absolute.

Legatee, Lou Welsch, Jr., ruled the executor to show cause why he should not be paid the amounts withheld from his legacy for payment of his prorata of the succession debts and Federal Estate Taxes. The rule was made absolute and the executor was ordered to pay Lou Welsch, Jr., an additional $560.

The executor appealed to this Court from the two judgments rendered in favor of Jonas Simon, and the appeals were consolidated.

On appeal the executor concedes that the costs and expenses of the succession should not be prorated, and the legatees, Simon and Welsch, admit that they should pay the Louisiana State Inheritance Taxes. Therefore, the sole issue for determination is whether these legatees should bear a pro-rata of the Federal Estate Tax or whether the tax should be paid by the succession.

The executor contends that since the testator did not specifically exempt Jonas Simon and Lou Welsch, Jr. from payment of taxes, it was her intention that they pay Federal Estate Taxes. He further argues that by their admission that they should pay the Louisiana State Inheritance Taxes, these legatees admit that they should pay the Federal Estate Taxes. This syllogism does not syllogize, for the reason that State Inheritance Tax is directly levied on the specific amount received by the legatees.

The polar star oí interpretation of wills is that the intent of the testator must be ascertained. Article 1712 of the LSA-Revised Civil Code.

The regulations as to Federal Estate Tax concerns the sole issue in this case, and we shall now discuss the pertinent provisions of the law relating thereto.

In 26 U.S.C.A. § 2002, we find:

■“The tax imposed by this chapter shall be paid by the executor.”
“A tax computed in accordance with the following table is hereby imposed on the transfer of the taxable estate, determined as provided in section 2051, of every decedent, citizen or resident of the United States dying after the date of enactment of this title: * * * ” 26 U.S.C.A. § 2001;
and,
“For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the exemption and deductions provided for in this part.” 26 U.S.C.A. § 2051.

In the case of Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 110, 87 L.Ed. 106, which construed an earlier Revenue Act, our Supreme Court held:

“We are of opinion that Congress intended that the federal estate tax should be paid out of the estate as a whole and that the applicable state law as to the devolution of property at death should govern the distribution of the remainder ánd the ultimate impact of the federal tax * * *. In the Act of 1916 Congress turned from the previous century’s inheritance tax upon the receipt of property by survivors (see Knowlton v. Moore, 178 U.S. 41, 20 S.Ct. 747, 44 L.Ed. 969; Scholey v. Rew, 23 Wall. 331, 23 L.Ed. 99) to an estate tax upon the transmission of a statutory ‘net estate’ by a decedent. That act directed payment by the executor in the 'first instance, * *

In the case of Rogan v. Taylor, 136 F.2d 598, 600, the United States Circuit Court of Appeals, Ninth Circuit, held:

“ * * * The general rule, when the law of the state does not provide otherwise, is that this burden rests, like other administration expenses, on the general estate and is not apportioned among the legatees. Y. M. C. A. v. Davis, 264 U.S. 47, 44 S.Ct. 291, 68 L.Ed. 558. * * * This rule is recognized in California. * * * ”

In 26 U.S.C.A. § 2205, we find:

“If the tax or any part thereof is paid by, or collected out of, that part of the estate passing to or in the possession of any person other than the executor in his capacity as such, such person shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate or whose interest is subject to equal or prior liability for the payment of taxes, debts, or other charges against the estate, it being the purpose and intent of this chapter that so far as is practicable and unless otherwise directed by the will of the decedent the tax shall be paid out of the estate before its distribution.” (Italics ours.)

From the decisions in the cases of Riggs, supra, and Rogan, supra, we believe that it was the intention of Congress that the matter of apportionment of the Federal Estate Tax be determined by the individual States, but that under no circumstance should payment be defeated. In order that this purpose be achieved, it appears that the general rule is to have the succession pay the tax before payment of particular legacies. The fact that Louisiana has not deviated from the general rule is borne out by the following pronouncement in the Succession of Henderson, 211 La. 707, 30 So.2d 809, 814:

“Thus normally the full brunt of federal taxation is borne by the residuary legatee. However, under specific provisions of the federal law, the testator has full power to direct an apportioning of the federal tax amongst the various legatees in any manner he desires. Some states have enacted legislation providing for an apportionment of the federal tax between the various legatees unless the testator by will provides otherwise, Fed.Estate and Gift Tax Reports (CCH) Par. 3729.18 and such legislation has been sustained as not in conflict with the federal- law. Riggs v. Del Drago, 1942, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106, 142 A.L.R. 1131. Where neither the legislature nor the testator has provided for such an apportionment, this Court is powerless to give any relief to a residuary legatee/*' See, Revised Civil Code, Articles 1642, 1611, 1424.

The issue before us is the payment of the Federal Estate Tax. The inventory in this case totals $581,940.67, and the funds are adequate to pay the Federal Estate Tax of $94,120. 78.

Therefore, for the reasons assigned, the judgment of the trial court in each of these consolidated cases is affirmed; all costs to be paid by the succession.

Judgments affirmed.

HAMITER, J., concurs in the decree.


text:
    229 La. 959
    COMMERCIAL SECURITIES COMPANY, Inc. v. HUGH ROBERSON MOTORS, Inc., et al., Eldridge Chaisson, Third Opponent.
    No. 42277.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      John W. Hebert, Jennings, for applicant.
    Peterman & Burden, Alexandria, for respondents.
   MOISE, Justice.

In the exercise of our supervisory jurisdiction, provided for by Article VII, Section 11, of the Louisiana Constitution of 1921, LSA, we granted certiorari to review a judgment of the Court of Appeal, ‘Second Circuit, which reversed a judgment of the Ninth Judicial District Court for the Parish of Rapides.

The case involves the priority of a chattel mortgage held by plaintiff, Commercial Securities Company, Inc., against a 1954 Plymouth automobile which the third opponent, Eldridge Chaisson, purchased in good faith from Benoit Motor Co. (automobile dealer) under the following circumstances :

“On the early morning of October 15, 1953, Hugh Roberson Motors, Inc., a Chrysler and Plymouth automobile dealer in the City of Alexandria, in order to secure a loan of money made to it by plaintiff for the purpose of paying the manufacturer for a new Plymouth car purchased by and delivered to the dealer, executed a note secured by chattel mortgage on the vehicle. Later the same morning, defendant sold and delivered this automobile to Benoit Motor Co., an automobile dealer in Welsh, Louisiana, the purchaser having no actual knowledge of the chattel mortgage executed by defendant. On October 20th following, Benoit Motor Co. sold and delivered to third opponent the automobile in question. Subsequently, third opponent applied to the Louisiana Vehicle Commissioner for a title to the Plymouth, following which he was informed by the Commissioner of the existence of the chattel mortgage granted by defendant. This mortgage, of the type referred to' as a ‘floor plan mortgage’, was received in the office of the Commissioner on October 16, 1953, or, on the day following its execution and the sale of the car to Benoit Motor Co. The sale to Benoit Motor Co. was evidenced by delivery to the purchaser of the original invoice for the car received by Roberson Motors.”

On November 25, 1953, plaintiff obtained a judgment against Hugh Roberson Motors, Inc. and Hugh Roberson, individually, and in solido, recognizing plaintiff’s lien and privilege. Writs of fieri facias issued, and the automobile was seized from the third opponent, appraised and sold, and the proceeds of the sale were placed on deposit. The third opponent then filed an affidavit of ownership and a petition of third opposition, and the trial court recognized his claim and awarded him $1,700, plus $200 attorney’s fees. The Court of Appeal for the Second Circuit reversed that judgment, and the third opponent applied to this Court for a writ of review.

A cursory review of the following pertinent provisions of the Louisiana Vehicle Certificate of Title Law, Act 342 of 1950' as amended is necessary:

LSA-Revised Statutes 32:702:
“(1) ‘Person’ shall mean any individual, firm, corporation, partnership or association.
“(2) ‘Dealer’ shall mean any person engaged in the business of buying, selling or 'exchanging motor vehicles which are subject to license under Chapter 4 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950.
* * ' *' * * *
“(3) ‘User’ shall mean any person who acquires a vehicle for purposes other than resale -and is required to register same under the provisions of the Louisiana Vehicle Registration License Tax Law, Chapter 4 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950.
******
“(5) The term ‘floor plan loan’ shall mean any loan made to a licensed vehicle dealer and secured by a chattel mortgage on vehicle which constitutes a part of the dealer’s stock in-trade held for sale in the ordinary course of business.”

Using the inapplicable provisions of LSA-Revised Statutes 32:705, 32:706 and 32:710 as a basis, plaintiff contends that the title of Benoit Motor 'Co. was imperfect.

The facts are that the ownership of the Plymouth automobile passed to Benoit Motor Co. prior to the recordation of plaintiff’s mortgage. Therefore, Benoit Motor Co. acquired title free and clear of plaintiff’s chattel mortgage. In Hindelang v. Collord Motors, 200 La. 569, 8 So.2d 600, 604, we heldi .

“It is our opinion that the plaintiff having' purchased for value the Plymouth automobile without knowledge or notice of the chattel mortgage and before the recordation thereof, the chattel mortgage was ineffective and not binding upon him and that he purchased the automobile free of it. Therefore, the seizure of the plaintiff’s Plymouth automobile was illegal.”

LSA-Revised Statutes 32:704 controls the instant matter and reads as follows:

“The provisions of this Chapter shall apply to the sale and chattel mortgaging of vehicles of the sort and kind required to be registered and licensed ' under the provisions of Chapter 4 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950, except that there is specifically excluded from the provisions of this Chapter the sale of a new vehicle prior to' the first sale of such new vehicle to a user, as defined herein. Such exclusion, however, does not exempt from the provisions of this Chapter such first sale made to a user as defined herein.” (Italics ours.)

We agree with the following quotation from the judgment of the trial judge:

“The fundamental premise of the-statute is stated in Section 704 providing that ‘there is specifically excluded from the provisions of this Chapter the sales of a new vehicle prior to the first sale of such new vehicle to a user, as defined herein.’
“This declaration of intent is clear and unambiguous and controls all that follows after it. In accordance with the background and reasons for the enactment of the legislation its purpose is to affect only vehicles that have entered into the general stream of public commerce. Its policy is not to affect new vehicles while they are yet in the ownership of the limited classes of manufacturers and dealers.”

Since Benoit Motor Company had a perfect title, it had a right to transfer the car to the third opponent, Eldridge Chais-son. Recordation of the mortgage on October 16, 1953 was not effective against Ben-oit Motor Company and could not become effective against the third opponent, Eld-ridge Chaisson.

For the reasons assigned, the judgment of the Court of Appeal for the Second Circuit is reversed and set aside. The judgment of the trial court is reinstated, and'under the provisions of the Code of Practice 554.1 it is amended so as to allow to the third opponent interest from date of judicial demand. All costs áre to be paid by plaintiff.


author: HAMITER, Justice. McCALEB, Justice

text:
    229 La. 967
    STATE of Louisiana ex rel. Mrs. Mary MAGLIORE, wife of Arthur Bertucci v. Johnny SARAGUSA.
    No. 42137.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    . John P. Dowling, New Orleans, for appellant.
    Weber & Weber, Baton Rouge, for defendant-appellee.
   HAMITER, Justice.

The instant appeal presents an issue between divorced parents respecting the custody of their daughter who was approximately nine years old at the time of the trial in July, 1954. It was perfected by the mother when the district court dismissed this habeas corpus proceeding instituted by her.

In 1944 the litigants married and established their matrimonial domicile in the City of New Orleans. Of the marriage there were two children: Phiney Saragusa, born on July 21, 1945 and whose custody is sought in these proceedings, and Sue Ann Saragusa, born May 28, 1949.

On August 1, 1949 the wife left the matrimonial domicile, taking Sue Ann with her but permitting Phiney to remain with the husband. She continued to live in New Orleans; whereas, he, one month later, moved with Phiney to the home of his mother and father in Hammond and obtained employment in that city.

Subsequently, on November 9, 1951, the wife obtained a judgment of divorce in a suit brought by her (apparently it was granted on the ground of living separate and apart for more than two years). No question of custody was raised or determined in the divorce proceeding, and the care of the children continued as it had been since the actual separation.

On December 12, 1951, or one month and three days after the judgment of divorce, the plaintiff wife entered into a second marriage with one Arthur Bertucci. However, her present habeas corpus proceeding for the custody of the child was not commenced until July 6, 1954 — about two and one-half years later and almost five years subsequent to the actual separation from the defendant.

The parties hereto recognize the legal principles by which our courts are governed in determining which of the divorced parents shall have the custody of a child or children. These are precisely set forth in the following language taken from Guillory v. Guillory, 221 La. 374, 59 So.2d 424, 425: “A mother is entitled to the custody of her child unless it be shown that she is morally unfit or that it would be a greater advantage to award its custody to its father. The paramount consideration in determining to whom the custody of the child should be granted is the welfare of the child. In awarding the custody of the child a large discretion is left to the trial judge, which, of course, is subject to review. A reasonable latitude must be left to the trial judge and his judgment is entitled to great weight. * * * This case, as in many cases involving the custody of children, resolves itself into a question of fact. * * * ” See also State ex rel. Theriot v. Pulling, 209 La. 871, 25 So.2d 620 and Ard v. Ard, 210 La. 869, 28 So.2d 461.

The only question presently before this court, therefore, is whether the trial judge, who saw and heard the witnesses, abused his discretion in determining that Phiney’s welfare would best be served by continuing the custody with the father who had theretofore enjoyed it for almost five years.

The record conclusively discloses that the mother abandoned her daughter to the care of the father when she left the matrimonial domicile and that she did not thereafter attempt to visit the child until September, 1953, a period of more than four years. In explanation of the abandonment she testified that for economic and health reasons she could not care for both children. It appears, however, that at all times her mother and a married brother lived nearby; and there was no testimony that they would have been unwilling or unable to assist her. Too, her remarriage in December, 1951 to Bertucci, with whom she had been dating since May of 1950, was a financially successful one; yet she made no effort to obtain custody of Phiney until' 1954.

As to the failure to see her daughter until September, 1953, plaintiff expressed the belief that had she attempted any visits the father’s belligerent attitude toward her would have resulted in ill effects on the child. But her own testimony, as well as that of the defendant, shows that she was never denied visitation privileges. In fact, in September, 1953, the defendant granted the first request made for permitting Phiney to spend a week end in the New Orleans home of plaintiff and her second husband.

When asked if she had given birthday and Christmas gifts to the child, plaintiff stated that she had sent some by way of her brother and sister-in-law. These persons, however, were not called to give testimony in corroboration of that statement. And there is evidence in the record that the child at no time received any such gifts from her.

The defendant and Phiney, as above shown, lived in the home of his parents in Hammond for some two years after the plaintiff left them. In December, 1951 he remarried and moved to Baton Rouge with the child and his second wife. About June 1, 1954, when defendant’s separation from the latter occurred, the child was returned to his father’s home in Hammond (meanwhile, in 1953, his mother had died).

During the trial plaintiff sought to show that Phiney was mistreated by the defendant, or with his consent, while living with him and his second wife in Baton Rouge; but she failed in the attempt. The evidence is overwhelming to the effect that he was devoted to her, treated her with great kindness at all times, and provided amply for her needs.

In oral argument and brief in this court plaintiff’s counsel emphasizes defendant’s statement, made under cross examination, that in his father’s home to which the child was returned there lived a person who had served a sentence for a violation of the narcotic statute. According to the defendant such person was his sister’s husband and had been released from the state penitentiary two or three years previously. He explained, however, that following his mother’s death the sister and brother in law (Mr. and Mrs. Pete Albano) went to live with Tiis father; that the brother-in-law was gainfully employed; and that the returning of the child there was merely a temporary measure which had been caused by the separation of his second wife only six weeks before. The record additionally establishes that Phiney was not living exclusively with her grandfather, but that she spent part of her time with another married sister of the defendant — a Mrs. Angeline Michelli, with whom she would make her home if ■custody be granted to the defendant. There was no evidence disclosing that the brother-in-law had been guilty of any law violation since his release from the penitentiary or that the child has been or would be harmed in any manner by the mentioned temporary measure.

The Michelli home, in which the defendant proposed to keep the child, was shown to be entirely acceptable. Mrs. Michelli, with whom Phiney is well acquainted and for whom she has much affection, lives with her husband and three children (one about two years older than Phiney) in a large attractive house on a farm which they own near Hammond. There the defendant could visit several times weekly while continuing his work in Baton Rouge, some 40 miles away.

Since this proposed arrangement would not permit the father to be constantly with the child, plaintiff suggests that it would be improper. In Guillory v. Guillory, supra, which involved an almost identical situation, we said: “ * * * The appellant makes much of the fact that the. father of the child subsequently married and separated from his second wife and the fact that he is now employed as the manager of a night-club, some eighty miles away. She seems to think that because the father only visits the child two or three times a week should have a bearing on the case. However, she does not point out a single fact to show the child is not receiving every care in the home of its grandparents. We can only determine the future from what has happened in the past. The father has always thought of and looked after the welfare of the child, but the appellant has not. Under the circumstances we cannot say that it would be to the best interest of the child to change the custody of it or that the trial judge abused his discretion in refusing to do so.”

Likewise, in Ard v. Ard, supra [210 La. 869, 28 So.2d 462], we observed: “Plaintiff’s first efforts to obtain the legal custody of the children following the abandonment occurred in 1945 through the institution of this suit, although she testified that on several occasions she requested defendant to give them to her. During the intervening eight years and up until the time of the trial, the boy was reared entirely by the father, while the girl was cared for partly by the father but principally by a paternal aunt, Sarah Brumfield, who was made a party to this suit; and, according to several reputable disinterested witnesses, both have received and are receiving all possible care, support and advantage. On the other hand, very little interest in or attention to the children, if any, has been displayed by plaintiff since she abandoned them.

“In support of his judgment herein, awarding the custody of the children to defendant, the trial judge assigned no written reasons. Obviously, he concluded that this is one of those exceptional cases wherein children are entrusted to the father, rather than to the mother, when it is for their greater advantage. Under the circumstances shown by the record we cannot say that in reaching his conclusion he has abused the discretion vested in him. For a mother to deliberately abandon her children of very tender ages, to make no effort to secure their legal custody for eight years, and to be generally disinterested in them for that long period, as was the case with this mother, are factors that combine to strongly indicate that she is unconcerned with their welfare, incapable of caring for them, and unsuited for their custody.”

What was stated in either or both of those cases can well be paraphrased and applied to the circumstances of the instant controversy. Therefore, we cannot conclude herein that the trial judge abused his discretion in determining that it would be to the best interest and welfare of the involved child to remain in the custody of her father.

For the reasons assigned the judgment appealed from is affirmed.

McCALEB, Justice

(dissenting),

I do not think that the welfare of the ten year old girl is best served by permitting her father to remain as her custodian. The record, while failing to indicate any lack of moral fitness whatsoever on the part of the mother, does contain uncontroverted testimony to the effect that the father engaged in immoral practices while married to the mother which precipitated the separation and the subsequent divorce. In addition, after the father’s separation from his second wife, the child was temporarily placed by him in the home of his father (the child’s grandfather) wherein also resided a person who had been convicted as a user of marijuana.

At the present time, it appears that the father has not yet made a permanent home for the child but proposes to place her in the home of his brother-in-law and sister. Aside from other considerations, it does not appear to me that this periodic moving of the child is beneficial to her welfare. ,1 believe that as the mother, who is ready, able and willing to care for the child, can provide her with a good home and reunite her with her younger sister, the child’s future happiness will be considerably enhanced by. a change of custody. While it is tr.ue that the ruling of the trial judge is entitled to great weight in these matters, I do not feel that this Court should regard his conclusions as so unerring as to render them practically infallible. , ,

I respectfully dissent..