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

text:
    230 La. 132
    Paul VIATOR v. HAYNESVILLE MERCANTILE COMPANY, Inc., Trustee,
    No. 42395.
    Supreme Court of Louisiana.
    May 7, 1956.
    Walter B. Gordy, Jr., Abbeville, W. S. Waller, W. M. Phillips, Shreveport, for appellant.
    Kibbe & Bailey, Abbeville, for plaintiff-appellee.
   SIMON, Justice. .

Plaintiff instituted this suit to have the mineral royalty interest conveyed by him to defendant declared extinguished by the prescription of ten years liberandi causa.

Defendant, contending that prescription had been interrupted by certain drilling operations conducted on said land, refused the demand of plaintiff to voluntarily cancel the mineral deed in question.

Upon trial on the merits, the district court rendered judgment in favor of plaintiff, decreeing that the royalty interest conveyed by him to defendant had prescribed and therefore reverted to plaintiff. Attorney fee in the sum of $300.00 was awarded in favor of plaintiff. Defendants have appealed from said judgment.

The record reveals that this case was submitted for decision on an agreed stipulation of facts entered into between the parties, which are substantially as follows:

By deed dated March 16, 1940, plaintiff, Paul Viator, conveyed to defendant, Haynesville Mercantile Company, Inc., Trustee, a %2 mineral royalty interest in the following described tract of land owned by plaintiff and located in Vermilion Parish:

13.4 acres, more or less, in Fractional Section 13, Township 13, South, Range 4 East, being a tract of land triangular in shape, and bounded on the North and East by Public Road, West by Edoris Meyers, and South by Grantor.

,27.57 acres, more or less, in the northern portion of the Northwest Quarter of Section 24, Township 13, South, Range 4 East, and bounded on the North by Edoris Meyers, and grantor, South by Sevignier Touchet, West by Estate of Eli Dugas, and East by the Public Road.

On June 14, 1948, more than eight years after the said sale of royalty interest, Via-tor executed an oil, gas and mineral lease in favor of Union Oil Company of California,'having a primary term of five years and covering the same land. Under paragraph 4 of said lease the lessee was authorized to pool or combine the land covered thereby with other land, lease or leases in the immediate vicinity thereof for the purpose of producing oil, gas and other minerals. The defendant to whom the mineral royalty interest under said land was conveyed was not a party to the said lease nor did it execute any other instrument authorizing the pooling thereof.

No well was drilled on the Viator tract. However, on April 24, 1949, the lessee, Union Oil Company of California, commenced the drilling of a well known as “Louise Thibodeaux No. 1” on a tract of land owned by Louise Thibodeaux. On or about June 4, 1949, this well was completed as one capable of producing gas and condensate in commercial quantities but was shut in on the same day, there being no available market. The rules and regulations of the Commissioner of Conservation prohibit the production of gas and other minerals in a well in the absence of a market. Except for testing purposes, no oil, gas or mineral was produced from the above well from June 4, 1949 to January 18, 1951, when a market for the production was secured. The Union Oil Company has produced and is presently producing gas and condensate in commercial .quantities therefrom.

Within ten years of the sale of the royalty interest here in dispute, on February 13, 1950, the lessee, Union Oil Company of California, executed and filed for recordation an instrument creating a unit for production of gas and condensate comprising a specific area of 320 acres, more or less, designated as “Louise Thibodeaux Unit V”. Among other lands, this unit included a portion of the tract leased by Paul Viator which is subject to the said royalty interest herein in dispute, the Louise Thibodeaux tract on which the aforesaid well was located, and the lands of Basil Sonnier. The Sonnier mineral lease in favor of Union Oil Company of California did not authorize the formation of a unit such as the one declared upon by the said lessee.

Apparently aware that it had improperly included the lands of Basil Sonnier within its first declaration of unitization, on October 31, 1950, lessee secured from Basil Sonnier an amendment to his lease authorizing the pooling of his land with other lands and leases for production purposes. It is significant that this amendment made no reference whatever to the Louise Thibo-deaux Unit V which had been declared February 13, 1950. It is also significant that this amendment was executed more than ten years and six months after the date of appellant’s acquisition of its Ys2 royalty interest from Viator.

Having thus obtained an amendment to the Sonnier lease, Union Oil Company of California by act dated February 12, 1951, filed a second declaration of unitization, pooling the identical acreage it had pooled and unitized by its declaration of February 13, 1950. Clearly, the declaration filed on February 13, 1950 was an unauthorized attempt to pool the land of plaintiff with the land leased from Sonnier, the latter not having authorized the same under his mineral lease. Thus, the question presented is whether the declaration of February 13, 1950, is invalid for this want of authorization by the original Sonnier lease.

The identical factual issue here presented was recently considered by us in the case of Union Oil Co. of California v. Touchet, La., 86 So.2d 50, 53. The Louise Thibo-deaux Unit V, declared on February 13, 1950, is the same unit, the formation of which was relied upon by the royalty owners in the Touchet case in their attempt to show the interruption of prescription and which is now again relied upon as a basis for the interruption of prescription in the case at bar. In the Touchet case, we said:

“Since the Louise Thibodeaux Well No. 1 was not located on the lands subject to the royalty right, there was no production from this tract and the royalty right here in dispute has prescribed for want of production, unless the operating unit formed by means of the declaration filed by the Union Oil Company on February 13, 1950, within 10 years of the date of the royalty sale, was valid; for, if so,
then the area comprising the unit is treated as one tract and one lease, and production from any portion of the area making up the operating unit has the same effect on property situated within the unit as if the well was drilled and completed on each of the various tracts of land embraced in the area and under each of the leases. Accordingly, if the operating unit formed by the first declaration filed by the oil company was valid and effective, the royalty right has not prescribed.”

In the instant case, Viator expressly granted to the lessee the right “to pool or combine the acreage, royalty or mineral interest covered by this lease, or any portion thereof, with any other land, lease or leases, royalty and mineral interests in the immediate vicinity. * * * ” We must necessarily conclude, as we did in the Touchet case, supra, that said right and authority granted by Viator to his lessee could be construed to mean only that such unitization should be with other leases in the immediate vicinity in which the lessee had authority to unitize. The declaration of February 13, 1950, having included within the unitized area the lands of Basil Son-nier, without his authority or consent, with that of the land of Viator and thus being an invalid unit, could not therefore serve as a basis for the interruption of prescription.

There being no production from the Viator Tract, and the declaration of February 13, 1950 being null and void, it follows that the fact that production was had from the Louise Thibodeaux tract cannot be considered as production from the Viator tract legally sufficient to interrupt the prescription of ten years liberandi causa. Therefore, we conclude that the Ya2 royalty interest conveyed to appellant has been lost by the tolling of prescription.

It is contended by appellants, the royalty purchasers herein, that in accord-anee with the terms of the oil, gas and mineral lease to Union Oil Company of California, in order to keep said lease in effect, monthly payments of 'shut-in gas royalties were made to Viator for the period from June 14, 1950, to February 14, 1951, inclusive. It is argued that the acceptance of said payments by Viator constituted a ratification of the declaration of unitization of February 13, 1950, and that therefore Viator is estopped to question the validity thereof.

This contention is without merit. The first shut-in gas payment made to Viator was made on June 14, 1950, almost three months after the royalty interest conveyed on March 16, 1940, had prescribed by the prescription of ten years liberandi causa. No act of estoppel or ratification on the part of Viator occurring after March 16, 1950, could have revived the royalty interest claimed by appellant in this cause, said interest having prescribed. In the case of English v. Blackman, 189 La. 255, 179 So. 306, 311, we said:

“ *' * * When English accepted the benefits referred to, the servitudes which he granted were already prescribed. Since they had not been exercised and the running of prescription against them had not been interrupted within the ten-year period after their execution, they expired, became extinct. They were dead things, and the mere acceptance of the benefits of the new lease thereafter did not resurrect them. Accrued prescriptions cannot be ‘interrupted,’ of course.”

Therefore, it necessarily follows that even if Viator had accepted payments of shut-in royalties, a factual issue not borne out by the record, such payments would not have had the effect of reviving the royalty interest once owned by appellants which had already-legally prescribed by the prescription of ten years liberandi causa. Also, see Arkansas Louisiana Gas Co. v. Thompson, 222 La. 868, 64 So.2d 202; Michel v. Efferson, 223 La. 136, 65 So.2d 115; Union Oil Co. of California v. Sevig-nier Touchet, supra; 31 C.J.S., Estoppel, § 109(b), p. 349.

The district judge further found that plaintiff was entitled to an attorney fee of $300.00, as provided for in Act 168 of 1920, now LSA-R.S. 30:102, which provides in part:

“If a lessee, having been given written notice demanding cancellation of the lease, fails or refuses to comply within ten days, he shall be liable to the lessor for a reasonable attorney’s fee incurred by the lessor in bringing suit to have the cancellation adjudged. * * ”

The above cited statute provides for attorney fees solely for the benefit of a lessor in connection with a suit for the cancellation of a lease as well as sub-lessors who assume all rights, interest, obligations, penalties, etc., enjoyed by and granted to the original lessor. Wier v. Grubb, 228 La. 254, 82 So.2d 1.

Ordinarily an award of attorney fees can be made only through express statutory authority, and such a statute is held to be punitive in nature and therefore must be strictly construed. Wier v. Grubb, supra. We ne’cessarily conclude that this statute affording the right to attorney fees cannot be extended to cover the fees sought in the case at bar, a suit to cancel and erase the sale of a royalty interest.

Accordingly, for the reasons assigned, the judgment of the lower court is reversed, annulled and set aside insofar-as it awards attorney fees in behalf of plaintiff, and in all other respects the said judgment is affirmed; defendant to pay all costs.

HAMITER, Justice

(concurring in part and dissenting in part).

I concur in that part of the judgment which denies attorney’s fees. Otherwise I respectfully dissent for the reasons which I assigned in Union Oil Co.- of California v. Touchet, 229 La. 316, 86 So.2d 50.

McCALEB, Justice

(concurring in part and dissenting in part).

I agree that plaintiff is not entitled to recover attorney’s fees. In my opinion, plaintiff has no case at all as defendant’s royalty interest has not been extinguished by prescription. The operating unit formed by Union Oil Company on February 13, 1950, to which plaintiff gave his unconditional consent and from which production was obtained during the life of the royalty interest, was not invalid by reason of the oil company’s failure to have Basil Son-nier’s express consent at the time of its formation. The latter’s consent, which was subsequently obtained, had a retrospective effect by virtue of Article 2041 of the Civil Code. See my dissenting opinion in Union Oil Co. of California v. Touchet, 229 La. 316, 86 So.2d 50.

      “[Footnote 1.] The second declaration discussed herein was filed by the oil company more than 10 years after the date of the royalty sale.”


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    230 La. 143
    BARRETT DIVISION OF ALLIED CHEMICAL & DYE CORPORATION v. KENNEDY SAW MILLS, Inc., et al.
    No. 42437.
    Supreme Court of Louisiana.
    May 7, 1956.
    Eugene J. Coen, Shreveport, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King, Shreveport, for defendants-appellees.
   SIMON, Justice.

The Barrett Division of Allied Chemical & Dye Corporation seeks to recover the sum of $8,104.78, with 5% interest from November 25, 1953, until paid, the balance due on the purchase price of creosote oil distillate allegedly sold and delivered to defendants, Kennedy Saw Mills, Inc., John E. Kennedy, Sr., and John E. Kennedy, Jr.

The defendants denied liability on the ground that they were not the purchasers of the said creosote oil distillate.

Although plaintiff instituted this suit against the defendants named herein, in solido, it reserved the right to assert the same claim against the Benton Creosoting Company, a commercial partnership, later incorporated as the Benton Creosoting Company, Inc.

Upon trial, the court below rejected the demands of plaintiff but reserved to it the right to proceed against the heirs of Max Henderson, D. E. Burchett and the Benton Creosoting Company, Inc., as prayed.

Plaintiff has appealed from said judgment and presents for consideration and adjudication by us the sole question of fact whether the merchandise was sold and delivered to the defendants herein named.

Benton Creosoting Company was organized in 1947 as a partnership engaged in the business of creosoting timber. The partnership was operated by the individual members, Max Plenderson and D. E. Bur-chett, until the death of Max Henderson on November 14, 1952, when its operation was continued by D. E. Burchett and the surviving heirs of Max Henderson. In September, 1953, the said partnership was incorporated with its total shares of stock being issued to said partners.

Kennedy Saw Mills, Inc., operating as a wholesaler and broker in the sale of lumber and creosoted products obtained from various saw mills and creosoting plants, purchased approximately 80% of the output of the Benton Creosoting Company. Actually most of Benton’s creosoted products were sold and delivered on purchase orders made by defendant, who received the money therefor and credited the amount of the purchase to the account of Benton Creosoting Company.

The record discloses that defendant advanced loans' of money to the Benton Creosoting Company, made purchases in its name, and generally assisted in the conduct of its business. Purchase orders received by plaintiff ordering creosote oils shipped to defendant saw mills were written on stationery of Benton Creosoting Company and were signed as follows: “Benton Creosoting Company, per J. E. Kennedy, Jr., v. t.” A draft for the amount of Benton’s weekly payroll was usually drawn on and paid through defendant’s bank account. However, the Benton Creosoting Company operated its business as a separate entity with its own books of account and its own employees. Benton Creosoting Company became heavily indebted to defendant and, after being incorporated, executed a mortgage in favor of defendants for a sum in excess of $100,000 to secure the indebtedness due them.

Plaintiff had supplied Benton Creosoting Company with creosote oils prior to its incorporation, but when Benton’s account fell in arrears plaintiff refused to make any further shipment to said company. In an attempt to obtain a guarantee of payment from defendant, plaintiff, on September 3, 1953, wrote to Kennedy Saw Mills, Inc., about the Benton Creosoting Company account as follows: “Inasmuch as deliveries for this account are made on the strength of your guarantee of payment and all previous deliveries have been paid direct by Kennedy Saw Mills remittances, we are wondering about the nature of the transaction that is causing the delay. * * * ”

On September 14, 1953, the Kennedy Saw Mills replied, saying, “We do not guarantee their accounts. We are merely lending them, on their plant and inventory mortgages, and trying to assist them with their sales. Their inventories are too high and their sales too small; we have advised them to slow down their production.”

On July 8, 1954, plaintiff instituted this suit and attached to its petition duplicate invoices showing the description of the merchandise delivered to defendant. All of said invoices were dated prior to the date of incorporation of Benton Creosoting Company, being Invoice No. 5-2061, dated May 7, 1953; Invoice No. 5-2152, dated May 19, 1953; Invoice No. 5-2188, dated May 25, 1953; and Invoice No. 6-2176, dated June 23, 1953. These duplicate invoices were prepared for the purpose of showing the merchandise as being

“Shipped to: Kennedy Saw Mills, Inc.
“Sold to: Kennedy Saw Mills, Inc.”

However, at trial in the court below it was admitted by plaintiff’s credit manager that the duplicate invoices attached to plaintiff’s petition and offered as the evi-dentiary basis of its claim were in fact not true copies of original invoices rendered for this merchandise but were invoices prepared for the purpose of this suit to obtain a judgment against the defendants. To refute such evidence and to establish the true circumstances, defendant introduced copies of the original invoices, the correctness of which was admitted by the plaintiff, which conclusively showed that the merchandise was

“Shipped to: Kennedy Saw Mills, Inc.
“Sold to: Benton Creosoting Company”

Other evidence borne out by the record to corroborate defendant’s contention that the merchandise was sold to Benton Creosoting Company is that on the books of plaintiff the accounts of Kennedy and of Benton are designated by different numbers — No. 502056 and No. 065031, respectively. The duplicate copies of invoices attached to plaintiff’s petition, as well as the copies of invoices introduced into evidence by defendant, bear the same customer number assigned to Benton, No. 065031, thus clearly indicating that plaintiff intended to and did sell the merchandise herein to Benton Creosoting Company and invoiced them accordingly.

Plaintiff’s failure to satisfactorily account for the alteration made on the duplicate copies attached to its petition leaves us with no alternative but to apply the principle of law that the burden of proof rests upon a party relying upon a written instrument to account satisfactorily for any erasure, interlineation or other alteration operating as a substantial change in the instrument. See Wheadon v. Turregano, 112 La. 931, 36 So. 808; Messi v. Frechede, 113 La. 679, 37 So. 600.

There is no merit or substance to plaintiff’s contention that defendants are liable for the purchase price of the merchandise herein sued for on the basis of an alleged purported power of attorney executed by the late Max Henderson, allegedly exceeded by the defendants.

We find no error in the conclusion of the lower court that the merchandise was not sold and delivered to the herein named defendants. Being convinced of the correctness of the finding of fact resolved by the district court in favor of the defendants herein, we adhere to the well-established jurisprudence that the conclu-' sion reached by the trial judge and his judgment on the facts shall not be disturbed. Nalty v. Nalty, 222 La. 911, 64 So.2d 216; Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367; Olivier v. Abunza, 226 La. 456, 76 So.2d 528; McMahon v. Manufacturers Casualty Insurance Co., 227 La. 777, 80 So.2d 405; Sunseri v. Westbank Motors, 228 La. 370, 82 So.2d 43.

In passing, we note that while this matter was pending in this court for argument, appellee filed a motion to remand this cause to the trial court so as to incorporate herein proceeding No. 20,422 of' the docket of the Twenty-sixth Judicial District Court, which was filed by plaintiff herein against Benton Creosoting Company, Inc., et al. By said motion and in brief filed by ap-pellees, we are informed that appellant instituted said action and obtained an execu-tory judgment by default against Benton Creosoting Company, Inc., et al., for the purchase price of the identical merchandise shipped to defendants herein against whom they now seek a moneyed judgment.

In view of our holding herein, there is no necessity for us to consider this phase of the case.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed.


text:
    230 La. 150
    Charles MORAN, Jr., v. Charles DOUGLAS, Alias Charles Moran, Jr.
    No. 42822.
    Supreme Court of Louisiana.
    May 7, 1956.
    Barnes & Smith, Baton Rouge, for plaintiff-appellant.
    White & May, Baton Rouge, for defendant-appellee.
   SIMON, Justice.

Plaintiff filed this suit cumulating two demands: (1) to be declared and recognized the owner of a certain lot or parcel of ground situated in the Parish of East Baton Rouge; and (2) for a moneyed judgment for $9,220. The district court rendered judgment rejecting and dismissing plaintiff’s suit, from which judgment he prosecutes this appeal.

Defendant-appellee filed a motion to transfer this appeal to the Court of Appeal, First Circuit, on the ground that the record fails to show that the property claimed by plaintiff is worth in excess of $2,000, and that plaintiff’s demand for a moneyed award or damages was abandoned before the case was submitted to the trial court for decision. Plaintiff-appellant has not answered said motion, nor has he filed a brief in support of his appeal.

From an examination of the record we do not find either in the pleadings or in the evidence adduced at the trial below any affirmative proof of the value of the property, the ownership of which is asserted by plaintiff, or of the right in contest upon which our jurisdiction may rest.

Since the record fails to affirmatively show that the amount in dispute or the value of the right asserted exceeds the sum of $2,000, exclusive of interest, the jurisdiction of this court cannot be invoked; nor does this case fall within any of the classes of cases of which this court is given appellate jurisdiction. Louisiana Constitution of 1921, Art. 7, sec. 10 — LSA; Louisiana Board of Pharmacy v. Smith, 221 La. 1026, 61 So.2d 513; City of New Orleans v. Ryman, 225 La. 1092, 74 So.2d 386; City of New Orleans v. Langenstein, 227 La. 770, 80 So.2d 402, 403.

In the case of City of New Orleans v. Langenstein, supra, we quoted with approval from the case of State v. Cook, 197 La. 1027, 3 So.2d 114, as follows:

“ ‘ * * * In determining whether this court has appellate jurisdiction because of the amount in dispute, or because of the value of the thing in dispute, or because of the subject matter of the suit, in a given case, the record must show affirmatively that the court has appellate jurisdiction; otherwise the appeal must be dismissed or transferred to the Court of Appeal. * * (Italics ours.)

Plaintiff’s demand for the recovery of $9,220 constitutes an aggregate for rents and revenues in the sum of $6,720 and for deprivation of the use of said property in the sum of $2,500. No evidence was offered or adduced in support of these demands at the trial below, and hence cannot serve as a basis for determining our appellate jurisdiction.

It is well established that appellate jurisdiction is determined by the amount in contest when the case is submitted to the lower court for decision. If part of the original claim is forgiven or remitted before the case is submitted to the trial court for decision, appellate jurisdiction is then determined by only that which remains in dispute. Hanover Fire Ins. Co. v. Southern Amusement Co., 176 La. 631, 146 So. 316; H. A. Bauman, Inc., v. Tilly, 188 La. 531, 177 So. 657, 658; State v. Cook, supra.

In the Bauman case plaintiff sought specific performance of a contract to sell movable property and made several alternate demands, including one for damages of $22,000 for breach of contract, one for $1,500 for construction work, one for ownership of five oscillating fans, and one for $80, the latter being the difference in the price of the fans installed and those called for in the contract. The demand for specific performance was disposed of on the plea of res adjudicata. At the hearing below, the plaintiff offered evidence in support of his claims for $1,500 and $80. The trial court rendered judgment for plaintiff in the sum of $80. Plaintiff appealed to the Court of Appeal, Second Circuit, but that court transferred the appeal to this court on the ground that the $22,000 was still in contest. We, however, retransferred the appeal to the Court of Appeal, saying:

“Upon examination of the record we find that no evidence was tendered in support of plaintiff’s demand for $22,-000 and no adverse ruling of the court thereto. All the evidence sought to be introduced and introduced by the plaintiff on the trial of this case was in support of plaintiff’s demand for $1,500 and the demands with reference to the oscillating fans. The demand for $22,-000 is not urged on appeal, in fact, it would appear that the plaintiff abandoned this demand. The only dispute raised on the trial in the lower court was on plaintiff’s demand for $1,500 and the demands touching the oscillating fans, being in amount less than $2,000, consequently the amount in contest when the judgment was rendered in the lower court was less than $2,000. There is nothing to review on appeal touching plaintiff’s demand for $22,000 except the bare allegation in plaintiff’s petition. Our appellate jurisdiction in civil suits is governed by the amount in dispute, irrespective of the amount claimed. Const.1921, art. 7, § 10. It has been consistently held by this court that in an ordinary civil suit the appellate jurisdiction is determined by the amount in contest when the judgment is rendered in the lower court. Hanover Fire Insurance Co. v. Southern Amusement Co., 176 La. 631, 146 So. 316, and the many cases cited therein.”

In the case at bar the only issue upon which evidence was presented to the trial .court for decision was the ownership of the real estate, the value of which, or the value of the right asserted, does not exceed the sum of $2,000, exclusive of interest.

By virtue of the authority vested in this court under LSA-R.S. 13:4441 and 13:4442, it is ordered that this case be transferred to the Court of Appeal, First Circuit, the transfer to be made within 30 days after this decree has become final, otherwise the appeal is to be dismissed; the appellant to pay the cost of this appeal; all other costs to await the final disposition of the case.


author: FOURNET, Chief Justice.

text:
    230 La. 157
    W. H. HODGES AND COMPANY, Inc. v. John M. AARON and Woodrow W. Wester.
    No. 42470.
    Supreme Court of Louisiana.
    May 7, 1956.

      Jones T. Prowell, Jackson P. McNeely, New Orleans, for plaintiff-appellant.
    Gahagan & Gahagan, by Russell E. Gaha-gan, Natchitoches, for defendants-appellees.
   FOURNET, Chief Justice.

The plaintiff, W. H. Plodges & Co., Inc., alleging it is the holder in due course for value of a note in the amount of $24,550 executed February 29, 1952, by the defendants, John M. Aaron and Woodrow W. Wester, in favor of W. H. Hodges & Company — which note represents the purchase price of certain cattle and is paraphed for identification with a chattel mortgage covering these cattle as well as 20 head of “stocker” (common) cattle, given as additional security — seeks judgment against the defendants in solido for the amount of the note due in principal, interest, and attorney fees, and to have its lien, privilege, and chattel mortgage recognized and enforced under a writ of sequestration.

The defendants excepted to the pétition on the ground it disclosed neither a cause nor a right of action, and, answering, denied the plaintiffs held the note for value. Further averring the consideration thereof had failed in that the note had been given im payment for cattle represented to them “as: being good quality young brood cows,’' when an inspection revealed the cattle were not fit or suited for the purpose for which they were purchased, the defendants, in re-convention, sought to have the sale annulled and avoided, the note returned to them, and the plaintiff decreed to be the owner of the cattle, which they tendered.

After a full and exhaustive .trial on the merits there was judgment in fqvor of the defendants as prayed, and the plaintiff" is appealing from that judgment. "

It appears that W. H. Hodges & Company, dealer in cattle with an auction barn and office in Alexandria, Louisiana, had the cattle in controversy in a pasture at Boyce, near Alexandria, and was seeking some one interested in their purchase. A representative of the company, Roderick Champion, in whose hands the sale had been placed, knowing of the desire of the defendants to go into the business of raising cattle, approached them with the view of selling the herd, and, upon his representation that the cattle were young brood cows of good quality, the defendants agreed to their purchase on credit, giving therefor the note and chattel mortgage involved in this suit. The cattle were promptly moved from the pasture in Boyce to one leased by the defendants not far from Natchitoches, and, from time, as the calves were sold, the proceeds derived from this source were applied toward the principal and interest on the note.

Several months later the defendants received information that the cattle were old and not as represented, whereupon they constructed pens and chutes in their pasture so that the cattle might be corralled and inspected. This inspection revealed many of the cows in the herd were old and the Hodges office in Alexandria was immediately contacted. No satisfaction having been received from this course, some three weeks later the defendants took the matter up direct with the New Orleans office by letter dated August 10, 1952, as the result of which a representative was sent from the Alexandria office to the pasture, but delayed making the inspection upon arrival there because of the heat. Nevertheless, the note was renewed on August 29, 1952, its due date, upon the assurance of representatives of the plaintiff an inspection would be made of the cattle and the matter adjusted to their satisfaction. This inspection was not made until March 23, 1953, and upon the refusal of the company to make any other adjustment than to replace the number of cattle that had died during the interim (between 10 and 12, all of which were “gummers” ), although the March inspection revealed that of the 58 cows remaining in the herd there were 8 “gummers,” 15 with bad teeth, and 16 with medium teeth, leaving only 19 cows that could be properly classified as young brood cows, the defendants placed the matter in the hands of an attorney who, by letter, notified the plaintiff the sale was considered as rescinded and requested that the cattle be picked up and the note returned. This suit on the note and mortgage followed.

Despite the report of the plaintiff’s agent McCampbell following his inspection of the cattle on March 23, 1953, it is the contention of the plaintiff that the cows sold to the defendants were young; further, that they were not even represented to the defendants as young. The argument is that the reason there were so many “gummers,” “short-mouth” and “broken-mouth” cows in the herd was due to the fact that their teeth had been worn down over the period from their purchase in February of 1952 to the inspection made by the defendants in July of 1952, and the inspection made by the plaintiff in March of 1953, by grazing on short grass in a sandy pasture. It is further argued that their poor condition and' the death of the cows during the winter months was due to an insufficiency of grazing material on a pasture too small to accommodate the number of cattle, and the further fact that they were not properly fed or cared for.

Not only do we find the cattle were represented to the defendants as young brood cows, but that the defendants purchased them in reliance on this representation and would not have bought them otherwise. We think the record is equally clear, as reflected by the inspection made by the planitiff’s representative on March 23, 1953, that the cows were, for the most part, old and unsuitable for breeding purposes. We are fortified in this conclusion for the record reveals that, during the pendency of the suit, the cattle were sold by the plaintiff, not for brood purposes, but for slaughter.

A casual reading of the record readily discloses there is no basis for the claim that the condition of the teeth was attributable to the fact the cattle had grazed on land consisting of short grass and composed largely of sandy loam and gritty material. In fact, there is no evidence that the greater part of the pasture was sandy loam and gritty material. The record further reveals there is no basis for the contention that the cattle were not properly cared for. There is an abundance of evidence disclosing the cattle were not only well fed and given every attention, even to the extent that special food and drugs were secured in an effort to stimulate their appetite and strengthen them, but also that the pasture was ample for the cattle thereon, was composed of good grazing material, including clover, and that the defendants employed special caretakers and also the services of a veterinarian in an attempt to save the herd.

Counsel is further in error in the contention that the defendants in their re-conventional demand seek to rescind the sale under the provisions of Articles 2521— 2530 of the LSA-Civil Code for apparent or latent defects and redhibitory vices, for the pleadings and the evidence reveal the entire defense is predicated upon failure of consideration in that the note sued on was given in payment for cattle represented to be young brood cows when, in fact and in truth, they were old and unsuited for that purpose.

Nor did the defendants waive any rights they may have had with respect to the avoidance of the sale by the renewal of the note on August 29, 1952, for the note was, as reflected by the evidence, only renewed after they had been assured by the representatives of the plaintiff a satisfactory adjustment would be made as soon as it could be determined by an inspection just how many cattle should be replaced.

The final contention of plaintiff’s counsel is equally without merit. They not only fail to point out in what manner the defendants might have minimized their damages, but it is apparent that under the particular facts of this case they were powerless to do so. They could not dispose of the cattle because of the recorded chattel mortgage covering them, and they were without funds with which to purchase young brood cattle on the open market for the purpose of replacing them. The same may be said with respect to the claim of the ineffectiveness of the tender of the cattle, both in the letter of defendants’ counsel of June 12, 1953, at the time the answer was filed, and also at the time the case was tried, for the plaintiff admits the calves were all sold under the supervision of and upon the advice and with the consent of the plaintiff and the receipts turned over to the plaintiff to be applied toward the principal and interest of the note, and we know of no law that would have required the defendants to tender to the plaintiff the dead cows, especially when the record shows they died through no fault of the defendants.

For the reasons assigned, the judgment appealed from is affirmed, at the cost of the plaintiff.

      . The-cattle were seized under the writ of sequestration, and, at the suggestion and request of attorney for plaintiff, placed in the custody of the defendant Aaron.

      . W. H. Hodges & Company of Alexandria is a partnership composed of the surviving widow and children (three sons and a daughter) who own their interests therein as the heirs of the late W. H. Hodges, formerly doing business as the Hodges Company of Alexandria, and this partnership, together with the surviving widow and three sons, are the sole owners of all of the stock in W. H. Hodges & Company, Inc., of New Orleans, Louisiana.

      .It appears these cattle were purchased from Ralph Ingram, who had secured them from Texas sight unseen and had kept them for several months in his pasture at Boyce before selling them to the Hodges company in the early part of February of 1952, after the cattle had been inspected by the company and some three or four bad or old cows culled from the herd, which herd, at the time of the purchase by the defendants, consisted of 69 white-faced Hereford cows, 1 registered bull, and 40 or 41 calves.

      . The defendants paid on the principal $3,603.93, and in interest between February 29, 1962, and February 28, 1953, interest in the sum of $1,339.03.

      . The notation on the reverse of the note reads: “August 29, 1952: Interest on the within note has been paid through August 29, 1952 and the principal balance of $23,644.93 is hereby extended to February 28, 1953, with interest at the rate of 6% per annum from August 29, 1952, until paid, without notation.”

      . It appears that in the case of dehorned cows, such as these were, the only way in which the age of the cow can be determined is by penning them and breaking their mouths open for a close inspection of their teeth. Those without any teeth, called “gummers,” are considered to be very old; those with short teeth, called “short-mouth” cows, are also considered up in age, since the wearing away of the teeth is a more or less gradual process and the teeth become worn through the years. Gummers, cows with short teeth, and cows with broken teeth cannot, of course, properly masticate their food, and, for this reason, become weak and thin and die unless given special care and are fed on especially prepared soft food.

      . The record does not disclose on what authority the cattle, under seizure and in the custody of Aaron, were removed and sold; nor does it show the amount realized from such sale and the disposition of these funds.


text:
    230 La. 167
    Succession of Vassey ALSTOCK.
    No. 42190.
    Supreme Court of Louisiana.
    May 7, 1956.
    Gahagan & Gahagan, Natchitoches, for opponent-appellant.
    Watson & Williams, by Arthur C. Watson, Natchitoches, for appellee.
   SIMON, Justice.

The decedent, Vassey Alstock, died intestate at his domicile in the Parish of Natchitoches, Louisiana, on March 19, 1950. On September 12, 1953, his surviving widow, Lucy Alstock, filed a petition alleging the existence of privileged and ordinary debts due by the estate and prayed that an inventory be taken of the real and personal property left by decedent, and that she be appointed administratrix of the succession. She alleged that the decedent left no ascendants or descendants, being survived by his widow and collateral relations as his sole and only heirs at law.

Oppositions were filed to said application, and upon trial had on the issues thus raised, the court below rendered judgment recognizing and appointing the surviving widow administratrix of this succession, from which judgment opponent, Ravie Al-stock, alone has appealed. Two other opponents, Lorene Allstork (Alstock) and Lisso Hamilton, have not appealed from said judgment.

The record discloses that decedent obtained a patent from the U. S. Government on 80 acres of land situated in the Parish of Natchitoches. The record is not clear as to the date title became vested in the decedent. Decedent married Lucy Alstock on December 21, 1906, and they lived and resided on said property until the time of his death. In 1940 they built a house on this 80 acres of land with community funds, which house is worth about $1,250. Forty acres of the land was fenced with community funds.

By order of court an inventory was duly taken and filed and shows decedent’s estate to consist solely of the said 80 acres of land with improvements thereon, valued and appraised at the sum of $2,400.00.

Petitioner contends that as the surviving widow she is an heir at law to the community interest left by the decedent, and that his •separate estate, if any is shown to exist, is indebted to the community for improvements placed thereon.

Decedent’s surviving brother, Ravie Al-■stock, opponent, contends that the property left by decedent was separate property and ■that no debts were due by his estate, and, therefore, no administration thereof was necessary. In the alternative, he contends that should the court appoint an administrator that he be named to said office.

The record reveals that by authentic deed dated December 17, 1953, five days prior to the filing of his opposition, Ravie Alstock sold and disposed of all of his right, title and interest in and to the property comprising the estate of decedent, for a ■cash consideration of $50, to Russell Ga-hagan, attorney for opponent, and one, B. B. Wilkie. It follows that because of this sale the opponent, Ravie Alstock, has no pecuniary interest in this succession and is, therefore, without any standing to interfere with the management and settlement thereof or to oppose the appointment of one who seeks the office of administrator. It is significant that opponent’s opposition was filed in his name through his attorney, the joint purchaser of his interest in said succession, after opponent had disposed of his interest therein and had become thereby a total stranger in the settlement of the succession.' We deem it unconscionable for the attorney of this opponent to purchase the right, title and interest of his client and thereafter file an opposition in the name of said client. Under these circumstances it would have been idle on the part of the court below to have recognized the opposition of Ravie Alstock or to have heard testimony presented in support thereof.

Throughout our jurisprudence is the well-accepted principle that one without a pecuniary interest has no judicial standing to interfere with the administration of a succession. This principle is founded upon simple, plain common-sense; it is formulated in Article 15 of our Code of Practice, which provides that “An action can only be brought by one having a real and actual interest which he pursues, * * See Succession of Williams, 107 La. 610, 32 So. 65; Quaker Realty Co. v. Labasso, 131 La. 996, 60 So. 661; Waterhouse v. Star Land Co., Ltd., 139 La. 177, 71 So. 358; Succession of Feitel, 187 La. 596, 175 So. 72.

Were this principle not applicable in the instant case, we would rightfully assume that the trial judge in appointing the surviving widow as administratrix was influenced by the uncontradicted evidence that opponent is notoriously known to be mentally incompetent, as well as proof of the fact that he is totally illiterate, unable to read or write.

The question as to whether or not a succession should be placed under administration is, to a very considerable extent, submitted to the sound discretion of the trial judge, exercised for the benefit of all parties in interest, and especially for the protection of parties advancing claims against the succession. Community claims herein asserted against the alleged separate property, standing alone, as well as the rights of a surviving widow in necessitous circumstances, are clearly foreshadowed, the testing of which would more quickly and economically be settled between claimants under an administration. Succession of Story, 3 La. Ann. 502; Succession of Perot, 223 La. 412, 65 So.2d 895.

We do not find that the district court has improperly exercised the discretion vested in it as to the necessity of an administration of this succession; and we find no error as to the choice and appointment of the administratrix herein.

Accordingly, for the reasons assigned, the judgment appealed from is affirmed, appellant to pay all costs.


author: PONDER, Justice.

text:
    230 La. 173
    F. Lisle PETERS and Mrs. Louise M. Peters v. William A. COOPER, Collector of Revenue, State of Louisiana.
    No. 40847.
    Supreme Court of Louisiana.
    May 7, 1956.
    A. Leon Hebert, Baton Rouge, for appellants.
    Robert L. Roland, George ■ C. Gibson, Levi A. Himes, Baton Rouge, for appellee.
   PONDER, Justice.

Plaintiffs brought suit to recover the sum of $1,034.38, together with interest at the rate of 2% per annum, paid under protest as income tax to the Collector of Revenue, State of Louisiana. Plaintiffs allege that this amount should be refunded since, in levying the tax, the State has included in gross income the gains of the sale of certain intangible property (stock) sold outside of the State of Louisiana and that to include same is not warranted and in violation of the true intent and purpose of Act No. 21 of 1934, as amended by Act No. 200 of 1946, LSA-R.S. 47:21 et seq.

The district court rejected the demands of the plaintiffs and they have appealed to this Court.

The amount in dispute does not exceed $2,000 and, since the constitutionality or the legality of the tax is not in contest, this Court does not have jurisdiction, State Farm Mutual Automobile Insurance Company v. Ott, 221 La. 1061, 61 So.2d 872. Therein this Court reviewed the jurisprudence on this subject and concluded that whenever judicial interpretation of the taxing statute is necessary to determine the issues presented without the constitutionality or legality of the statute being assailed, this Court does not have jurisdiction of the matter when the amount in dispute does not exceed $2,000.

For the reasons assigned, it is ordered that this appeal be transferred to the Court of Appeal, First Circuit, pursuant to the provisions of LSA-R.S. 13:4441 and 13:-4442, the records to be filed in such court by appellants within 30 days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. All 'costs shall await final disposition of the case.


text:
    230 La. 175
    William F. GLADNEY v. Sidney F. WEBRE and Mrs. Mamie H. Webre.
    No. 42319.
    Supreme Court of Louisiana.
    May 7, 1956.
    W. Frank Gladney, Baton Rouge, Joseph A. Loret, Baton Rouge, of counsel, for plaintiff-appellant.
    Franz Joseph Baddock, Baton Rouge, for defendants-appellees.
   PONDER, Justice.

In this case the plaintiff is seeking under ordinary proceedings to foreclose on a mortgage given in security of a promissory note. The defendants interposed an exception of vagueness based on the ground that while the plaintiff alleges that he acquired the note for value before maturity in the due course of business, that C. A. Tyler had previously sued the defendants on this same note claiming to be owner for valuable •consideration before maturity alleging that the note was past due and in default. In answer to the exception of vagueness, the plaintiff averred that the Tyler suit was dismissed as of nonsuit on February 2, 1954, prior to the acquisition of the note by plaintiff on March 20, 1954, and that even though he acquired the note after maturity that Tyler had acquired it prior to maturity and that the plaintiff is, therefore, invested with all the rights of Tyler, a holder in due course.

The defendants answered the suit averring that the notes were given without consideration and that their signatures were procured through fraud, trick, and artifice on the part of the plaintiff and that the allegations of plaintiff that he is the holder and owner for value and before maturity in due course of business of the described notes, are false and untrue by virtue of the plaintiff’s allegations in his answer to the exception of vagueness.

After the answer was filed, the defendants interposed an exception of no cause or right of action based on the ground that the plaintiff, an attorney, has in effect admitted by his answer to the exception of vagueness that he acquired a litigious right from C. A. Tyler in express violation of Article 2447 of the LSA-Civil Code. On hearing the district court sustained the exception of no cause or right of action and dismissed the plaintiff’s suit. The plaintiff has appealed.

The appellant contends that the trial court erred in holding that he had purchased a litigious right and that the executory process filed by Tyler was a suit which was still pending even though it had been voluntarily dismissed by Tyler and the note sued upon was withdrawn. While, on the other hand, the appellees contend that the suit was still pending at the time the note sued upon was purchased because the time for an appeal from the judgment of nonsuit had not elapsed.

It, therefore, must be decided whether the purchase of the note by the appellant at a time when the right to an appeal existed was the purchase of a litigious right within the contemplation of Article 2447, LSA-C. C. This article of the Civil Code provides that “Public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, can not purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.” A right is said to be litigious, according to Article 2653 of the LSA-Civil Code, whenever “there exists a suit and contestation on the same.” And it is said in Article 3556(18) that litigious rights are those “which can not be exercised without undergoing a lawsuit.”

From a reading of the cases involving the sale of litigious rights, it becomes apparent that there must be an existing suit for the enforcement of the right for it to be litigious. See Bluefields S. S. Co. v. Lala Ferreras Cangelosi S. S. Co., 133 La. 424, 63 So. 96. A title ceases to be litigious when final judgment is rendered, Saint v. Martel, 122 La. 93, 47 So. 413. But where an attorney purchases a judgment which is pending on appeal, it will be regarded as a litigious right. Mullen v. Amas, 7 La.Ann. 71.

In the case of State v. Nix, 135 La. 811, 66 So. 230, 232, an attorney purchased a judgment a few hours after it was rendered by the Supreme Court of this State and prior to the expiration of the delays for the filing of an application for rehearing. The Court held in that case that it was the purchase of a litigious right in violation of Article 2447 of the LSA-Civil Code. Prior decisions were cited therein with approval, wherein it was stated: “The Code from motives of public policy, prohibits attorneys at law from purchasing litigious rights.”

In the case of Denton v. Willcox, 2 La. Ann. 60 it was pointed out that the purchase of a judgment by an attorney from which no appeal could be taken was not the purchase of a litigious right. However, in the present case the right of appeal from the judgment of nonsuit existed at the time the appellant purchased the note.

A judgment of nonsuit is a final judgment from which an appeal lies. Code of Practice, art: 565; Baldwin v. Arkansas-Louisiana Pipe Line Co., 185 La. 1051, 171 So. 442 and the authorities cited therein.

It would appear that a suit is pending as long as any steps may be taken therein or as in the present case until the time for taking a devolutive appeal has elapsed.

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


text:
    230 La. 181
    STATE of Louisiana v. Joseph WASHINGTON and James Bush.
    No. 42701.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.
    James T. Jeter, Jack C. Wimbish, Shreveport, for defendants-appellants.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Edwin L. Blewer, Dist. Atty., Shreveport, for plaintiff-appel-lee.
   PONDER, Justice.

The Grand Jury for the Parish of Caddo returned an indictment against James Bush and Joseph Washington charging them with the murder of Claude Fontaine Bryant on February 12, 1954. On May 6, 1955 the defendant James Bush informed the trial judge that he was unable to employ counsel, whereupon the court appointed Mr. John T. Carpenter, an attorney, to represent him. Mr. Carpenter has been an active member of the Shreveport Bar and has been actively engaged in the practice of law for more than twenty years. On May 13, 1955 the defendants were called for arraignment, being represented by Mr. Carpenter and Mr. John F. Phillips, an attorney employed by and representing the defendant Joseph Washington. The defendants entered a plea of not guilty and their case was set for trial on June 13, 1955. Upon trial of the case, the jury returned a verdict on June 14, 1955 finding the defendants guilty as charged. On June 21, 1955 the defendants, accompanied by their counsel, were sentenced to be electrocuted. On September 6, 1955, some sixty-six days after sentence, motions for a new trial were filed in the lower court by two attorneys other than those who represented the defendants in the trial of the case. The motions were set for argument. The state moved to dismiss the motions for a new trial on the ground that they came too late, for the reason that the judge was powerless to consider the motions presented after the imposition of sentence in view of the positive provisions of Article 505 of the Code of Criminal Pro-

cedure (now LSA-R.S. 15:505). The defendants objected to the state’s motion and the court overruled the defendants’ objection. This ruling of the court is the basis of Bill of Exception No. 1. Counsel for the defendants moved for a continuance of the argument in order to submit evidence in support of their motions for a new trial. The court refused to grant a continuance and this ruling forms the basis for Bill of Exception No. 2. On October 7, 1955 the trial court overruled the motions for a new trial and defendants objected to the ruling and reserved Bill of Exception No. 3. On October 11, 1955 counsel for the defendants moved for an appeal which was granted. The appeal has been submitted for our consideration;

It is alleged in the motions for a new trial that thé attorneys representing the defendants before, during, and after the trial committed acts of commission and omission which deprived the defendants of a fair and impartial trial in violation of the due process clauses of the State and Federal Constitutions, LSA-Const. art. 1, § 2; U.S. Const. Amend. 14. The alleged acts of commission and omission are to the effect that a motion for a severance was not interposed; that no motion for a change of venue was filed; that no demurrer or motion to quash the indictment was filed attacking the legality or selection of the members of the Grand Jury returning the indictment as to the systematic exclusion of the colored race; that no challenge was made to the array of the petit jury as to the selection thereof without proper representation of the colored race; that the prospective jurors were not properly examined on their voir dire; that the state’s witnesses were not cross-examined; that no effort was made to sequester the witnesses; that no objection was made to the introduction of the defendants’ confessions; that no- bill of exception was taken during the course of the trial; that no special charge to the jury was requested; that no motion for a new trial was filed; that no plea of insanity was urged and that no appeal was taken from the conviction and sentence.

The sole question in this case is whether or not the trial- court had authority to entertain the motions for a new trial filed more than two months after the conviction and sentence. Under Section 505 of the Code of Criminal Procedure (now LSA-R.S. 15:505), “Every defendant has the right to move for a new trial at any time after verdict, but such motion must be filed and disposed of before sentence.”

In the case of State v. Truax, 222 La. 463, 62 So.2d 643, relied upon by counsel for the appellants, the motion for a new trial was filed the day after the imposition of sentence and without objection by the state. In the per curiam handed down in State of Louisiana ex rel. Joseph Sheffield v. Honorable Carey J. Ellis, Judge Fifth Judicial District Court, Parish of Franklin, State of Louisiana, et al., No. 41,689 on the docket of this court, this court stated:

“The imposition of the sentence was a final disposition of the case, LSA-R.S. 15:541 and the only orders which the trial judge could render were those pertaining to ministerial matters or those not in controversy on appeal, in the event an appeal had been taken. LSA-R.S. 15:545. He was powerless to consider a motion for a new trial, which was presented to him after the imposition of sentence, in view of the positive provisions of Article 505 of the Code of Criminal Procedure, LSA-R.S. 15:505 declaring that a motion for a new trial ‘must be filed and disposed of before sentence.’ See also State v. Albritton, 157 La. 579, 102 So. 683; State v. Hughes, 170 La. 1063, 129 So. 637 and State v. Seiley, 197 La. 405, 1 So.2d 675.
“In State v. Truax, 222 La. 463, 62 So.2d 643, heavily relied on by counsel for relator, the motion for a new trial was filed the day after the imposition of sentence and, without objection from the State, it was heard and overruled. On appeal, this court held that the judge did not abuse the discretion vested in him by the fifth paragraph of Article '509 of the Code of Criminal Procedure, LSA-R.S. 15:509, in refusing a new trial. Hence the statement in that opinion, that the trial judge could rightfully receive and consider a motion for a new trial after sentence, was unnecessary to the decision and is not controlling in view of Article 505 of the Code of Criminal Procedure, LSA-R.S. 15:505 and the jurisprudence to which we have above referred.”

It is provided in the Code of Criminal Procedure in Article 509, LSA-R.S. 15:509, that:

“A new trial ought to be granted: (1) Whenever the verdict is contrary to the law and the evidence; or (2) Whenever the bills of exception reserved during the proceedings show error committed to the prejudice of the accused; or (3) Whenever since verdict new material evidence has been discovered that could not have been discovered with reasonable diligence before or during trial; or (4) Whenever since verdict accused has discovered errors or defects in the proceedings to his prejudice that could hot have been discovered with reasonable diligence before verdict; or (5) Whenever, though as a matter of legal right the accused may not be entitled to a new trial, yet the judge is of the opinion that the ends of justice would be served by the granting of a new trial.”

This provision of law authorizes the trial court to grant a new trial when the ends of justice would be served but the motion for a new trial must be disposed of or the new trial granted by the trial court before sentence is imposed. Article 505, Code of Criminal Procedure, LSA-R.S. 15:505.

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

SIMON", J., absent.


author: HAWTHORNE, Justice.

text:
    230 La. 187
    Charles Ray GREIN et al. v. FIRST SEWERAGE DISTRICT OF the CITY OF LAKE CHARLES and The City of Lake Charles, Louisiana.
    No. 42761.
    Supreme Court of Louisiana.
    May 7, 1956.

      Patín & Patín, Lake Charles, for plaintiff s-appellants.
    George W. Liskow, J. B. Holloman, Jr., Lake Charles, for defendants-appellees.
   HAWTHORNE, Justice.

The governing authority of the First Sewerage District of the City of Lake Charles, a district coextensive with the limits of the city, called a special election for the purpose of submitting to the qualified taxpaying property owners within the limits of the sewerage district a proposition to levy a maintenance tax not to exceed five mills on the dollar for any one year for the purpose of maintaining and operating a sewer system in the sewerage district under the authority of Article 10, Section 10, of the Constitution of this state. At this election a majority of the qualified electors in both number and amount voted in favor of the proposition, and in due course and pursuant to the above authority the sewerage district through its governing authority imposed for the tax year 1954 a special maintenance tax of three mills on the dollar on the assessed valuation of all property subject to taxation within the district.

Property taxpayers residing within the sewerage district instituted this suit to enjoin the governing authority of the district from levying this special tax, alleging that the tax is illegal, void, and of no effect. After trial on the merits there was judgment dismissing plaintiffs’ suit at their costs, and they have appealed.

Article 10, Section 10, of the Constitution, under the authority of which the election was called and the special tax of three mills was imposed, reads insofar as pertinent:

“For the purpose of acquiring sites for, or for constructing or improving public buildings, school houses, including housing for public health units, roads, bridges, levees, sewerage or drainage works, incinerators or other works of permanent public improvement, title to which shall be in the public, or for the maintenance or operating expense thereof, or for the maintenance and operation of public health units, any political subdivision may levy taxes, in excess of the limitations otherwise fixed in this Constitution, not to exceed in any year five mills on the dollar for any one of said purposes, and not to exceed in any year twenty-five mills on the dollar, on any property, whether located within the territorial limits of one or more taxing districts, for all said purposes; and for giving additional support to public schools, any parish, school district or sub-school district, or any municipality which supports or contributes to the support of its public schools, may levy taxes in excess of the limitations otherwise fixed in this Constitution, not to exceed, in the aggregate, on any property, whether so taxed by one or more taxing districts or authorities, in any year, eight (8) mills on the dollar of assessed valuation; provided, no special tax authorized by this Section shall run for a longer period than ten years; and, provided further, that the rate, purpose and duration of any such special tax shall have been submitted to the resident property taxpayers qualified to vote in the subdivision in which the tax is to be levied and, a majority vote, of those voting, in number and amount, shall have voted in favor thereof; and, provided further, that in no instance or event and under no circumstances shall any property howsoever located or situated, with respect to one or more such taxing districts or special tax-levying authorities to [sic] be taxed for such purposes in excess of the maximum limitation herein prescribed. * * *
“This Section shall be self-operative. * * * ” (Italics ours.)

Appellants contend that the First Sewerage District of the City of Lake Charles does not have authority to levy a maintenance tax in excess of one mill on the dollar. In support of this contention they point out that this sewerage district was originally organized, and continues to operate, under the provisions of Act No. 285 of 1908. Act No. 285 of 1908 was reenacted and incorporated in the Revised Statutes of 1950 as R.S. 33:3931 et seq. Section 7 of the act, R.S. 33:3937, authorizes the governing authority of any municipality to levy upon the taxable property in the sewerage district an annual maintenance tax not to exceed one mill on the dollar, when authorized by a majority in number and amount of the resident property taxpayers voting in an election called for that purpose.

Appellants contend that the governing authority of the sewerage district in this case is expressly restricted by the provisions of the above section from levying any maintenance tax exceeding one mill on the dollar, and that Article 10, Section 10, of the Constitution, the authority under which the sewerage district seeks to levy the tax, is inapplicable because this provision of the Constitution simply grants additional authority to levy taxes in excess of the limitation otherwise fixed in the Constitution but does not grant the power to levy additional taxes in excess of the limitation fixed by the statute.

The sewerage district here has imposed the tax by authority of Article 10, Section 10, of the Constitution, which provides that any political subdivision, for the purpose of constructing, etc., sewerage works and for the maintenance or operating expense thereof, may levy taxes in excess of the limitations otherwise provided in this Constitution not to exceed in any year five mills on the dollar for this purpose, and this section of the Constitution is made by its own terms “self-operative”.

The Constitution is the paramount law, and since appellees have levied the tax under a constitutional provision which is self-operative, the provisions of R.S. 33:3937 cannot limit the amount of taxes which Article 10, Section 10, authorizes the governing authority to impose. In short, the fact that the First Sewerage District of Lake Charles is operating under the 1908 act does not prohibit its governing authority from availing itself of the taxing power conferred by Article 10, Section 10, of the Constitution.

We realize that under Article 10, Section 5, of the Constitution the power to limit the taxing power of municipalities and other political corporations is vested in the Legislature, subject to such limitations as may be provided in the Constitution. This section of the Constitution, however, provides: “The provisions of this section shall not apply to, nor affect, similar grants to such political subdivisions under other sections of this Constitution which are self-operative.”

Article 10, Section 10, under which the tax here was levied, is one of the “other sections of this Constitution which are self-operative”. It authorizes the levying by any political subdivision of taxes not to exceed in any year five mills on the dollar for the maintenance and operating expense of sewerage systems. Consequently the Legislature cannot by enacting R.S. 33:3937 limit a sewerage maintenance tax levied under the authority of this section of the Constitution to one mill on the dollar in any year.

Appellants contend in the alternative that in the event this court finds that the tax in question is levied under the authority of Article 10, Section 10 — as we have done — , then in that event the tax imposed is invalid because the total of the taxes imposed on taxable property within the limits of the sewerage district by all taxing authorities exceeds 25 mills on the dollar, which is the limitation fixed by the constitutional provision on taxation for all the purposes enumerated in this provision.

The record shows that numerous taxes have been levied on property situated within the sewerage district by the state, the parish, the municipality, and other taxing authorities for drainage, sewerage, public buildings, etc. Some of these taxes were levied under the authority of Article 10, Section 10, while others were levied under the authority of other constitutional provisions, such as Article 14, Section 14; Article 12, Section 15; etc. Appellants argue thát since all of these taxes are imposed for purposes enumerated in Article 10, Section 10, they all must be considered in determining whether the tax limitation of 25 mills imposed by Article 10, Section 10, has been exceeded, and that when they are considered, the limitation imposed by Article 10, Section 10, has been exceeded, and consequently the sewerage district may not invoke the provisions of Article 10, Section 10, for the imposition of the three-mill tax here in question.

We cannot agree with appellants’ contention that the taxes levied by the various taxing authorities on property located in the sewerage district under other provisions of the Constitution should be considered in computing the limitation of 25 mills fixed in Article 10, Section 10, of the Constitution. It is true that taxes levied under other provisions of the Constitution may be for the same purposes enumerated in Article 10, Section 10, such as the construction of public buildings, sewerage works, drainage, etc. For example, under Article 14, Section 14, a' tax may be imposed for the payment of principal and interest of bonds, the proceeds of which are used for sewerage, drainage, public buildings, etc., and that section spe-cificálly authorizes the issuance of such bonds for these particular purposes, which in some cases are identical with the pur-. poses enumerated in Article 10, Section 10, of the Constitution, under which the tax here under attack was levied. However, the fact that under other constitutional provisions taxes may be levied for purposes which happen to be the same as the purposes for which a tax may be levied under Article 10, Section 10, does not justify the consideration of those other taxes in computing the 25-mill limitation imposed by Article 10, Section 10.

That taxes levied under other provisions of the Constitution are not to be considered in computing the limitation of 25 mills fixed in Article 10, Section 10, we think is made clear by the provisions of the section itself. As we have heretofore pointed out, this section, which by its own provisions is self-operative, provides that “ * * * any political subdivision may levy taxes, in excess of the limitations otherwise fixed in this Constitution * * * ” for the purposes enumerated in Article 10, Section 10. (Italics ours.) Consequently the limitation of five mills on the dollar for any one purpose and the limitation of 25 mills on the dollar for all purposes could be construed only as limitations on taxes imposed and levied by taxing authorities pursuant to the section itself.

When taxes imposed under other provisions of the Constitution are excluded, and when only those are considered which are imposed under Article 10, Section 10, it is clear from the record that the limitation of 25 mills on taxes imposed by all taxing authorities on property subject to taxation within the First Sewerage District of the City of Lake Charles has not been exceeded, even with the addition of the three-mill tax here under attack.

Consequently there is no merit in appellants’ alternative contention that the three-mill tax is invalid as bringing the total taxation in the district over the 25-mill limitation; and the provisions of Article 10, Section 10, of the Louisiana Constitution may be invoked by the taxing authority of the sewerage district to levy the tax.

In support of their alternative argument appellants rely principally on the following clause of Article 10, Section 10: “ * * * and, provided further, that in no instance or event and under no circumstances shall any property, howsoever located or situated, with respect to one or more such taxing districts or special tax-levying authorities to [sic] be taxed for such purposes in excess of the maximum limitation herein prescribed.”

Standing alone this clause seems to lend support to their contention; but when it is read in context with the other provisions of the section, particularly with the provision that the taxes authorized therein may be levied “in excess of the limitations otherwise fixed in thi.s Constitution”, it is perfectly patent that in computing the limitation imposed by this section of the Constitution taxes levied by taxing authorities under other provisions of the Constitution, even though they may be for the purposes enumerated in this section, are not to be included.

Moreover, the provision quoted above upon which appellants rely was incorporated in the Constitution by an amendment to the section in 1934 (see Act No. 83 of 1934), following the decision in the case of Louisiana & A. Ry. Co. v. School Board of Webster Parish, 157 La. 1046, 103 So. 318, 319, in which this court construed this section to mean “that each political subdivision authorized to levy the tax provided by it shall be treated as a distinct entity throughout, and that the limitations imposed shall apply to each subdivision as a distinct entity, and hence that each subdivision shall remain unaffected in its right by the taxes imposed under the section by other political subdivisions in the same territory”.

It is clear, therefore, that this clause does not mean what appellants argue it means. This amendment was apparently incorporated into the section so that each taxing authority should no longer be considered a separate and distinct entity in computing the 25-mill limitation on taxes ■ levied under the authority of Article 10, Section 10, and so that all taxing authorities may levy under the authority of this section no more than a total tax of 25 mills on the dollar on any given piece of taxable property for all purposes enumerated in the section.

Appellees, the sewerage district and the city, argue in brief that school taxes levied on taxable property situated in the sewerage district under the authority of Article 10, Section 10, of the Constitution are to be excluded under certain provisions of this section in computing the 25-mill tax limitation. All taxes levied in this sewerage district by all taxing authorities under the authority of Article 10, Section 10, including both the school taxes and the three-mill sewerage tax here under attack, do not exceed the limitation of 25 mills, and it is therefore unnecessary to discuss this contention as it is not an issue in the case.

The judgment is affirmed, appellants to pay all costs.

      . The Legislature in 1926 adopted Act 26, R.S. 33:3911-3915, -which provides in Section 6, R.S. 33:3915, that the commissioners of any existing sewerage district can elect by ordinance to come under the provisions of this act. The First Sewerage District of the City of Lake Charles has never elected to operate under the provisions of the 1926 act.

      . No sewerage tax has been levied in the district except the three-mill tax now under attack. Consequently the five-mill tax limitation for one purpose is not an issue in the case.

      . See, however, Louisiana & A. Ry. Co. v. School Board of Webster Parish, 157 La. 1046, 1951, 103 So. 318.


text:
    230 La. 199
    STATE ex rel. SHIELDS, Inc. v. SOUTHPORT PETROLEUM CORPORATION OF DELAWARE.
    No. 42392.
    Supreme Court of Louisiana.
    May 7, 1956.

      Edwards & Edwards, by Edwin W. Edwards, Crowley, for plaintiff-appellant.
    Clay, Coleman & Dutrey, Elwood R. Clay, New Orleans, for appellee.
   HAWTHORNE, Justice.

In this case we are called upon to review a judgment of the district court dismissing plaintiff’s suit as abandoned under the provisions of Article 3519 of the Civil Code.

The appeal was originally lodged in the Court of Appeal for the Parish of Orleans, and that court transferred the case here because the amount in dispute exceeded $2,000. See 78 So.2d 201.

This case is a companion case to State ex rel. Shields v. Southport Petroleum Corporation of Delaware, decided by the Court of Appeal for the Parish of Orleans on February 28, 1955, also reported at 78 So.2d 201. The two cases present the same question for decision. In the case decided by it, the Court of Appeal reversed the judgment of the lower court dismissing plaintiff’s suit and remanded the case to the' district court for trial on the merits. 'We refused writs, stating: “Judgment of the Court of Appeal is correct as there is no error of law shown.” See our No. 42,359.

In the instant case defendant alleged in its motion to dismiss filed in the trial court on September 18, 1952, that the plaintiff had not taken any steps in the prosecution of the suit between May 13, 1947, when a second supplemental and amended petition was filed, and June 10, 1952, when a motion to fix the case for trial was filed, and that accordingly plaintiff had allowed more than five years to elapse without having taken any steps in the prosecution of the case and without ever having obtained a final judgment in it.

Pursuant to plaintiff’s motion of June 10, 1952, the case was fixed for trial on its merits for June 23, 1952. By consent of counsel, however, the trial was continued to September 15, 1952. On September 15, counsel for the defendant filed a motion stating that the case had been pending on the docket for 10 years, that the evidence and the witnesses of the defendant had become widely scattered and difficult to locate, that for the proper defense of the case it was necessary to bring from Texas voluminous records and numerous witnesses, that in order to produce this evidence and these witnesses defendant would incur great expense in costs, and that accordingly a bond for costs in the sum of $2,500 should be furnished by plaintiff. The court ordered plaintiff to show cause why it should not furnish security for costs as prayed for, and after trial the rule was made absolute, and plaintiff was ordered to furnish a $500 bond for costs within 20 days. Thereafter, on September 18, 1952, as we have) already said, defendant filed the motion to dismiss on the ground that plaintiff had allowed more than five years to elapse without taking any steps in the prosecution of the suit,

The pleadings as we have set them out above show that the plaintiff allowed five years to elapse without taking any steps in the prosecution of the suit, and consequently the sole question presented by this appeal is whether defendant by filing its motion for a bond for costs and obtaining an order thereon waived its right to claim plaintiff’s abandonment of the suit.

In State v. United Dredging Co., 218 La. 744, 50 So.2d 826, this court said that Article 3519, which provides that a suit shall be considered abandoned if the plaintiff allows five years to elapse without taking any prosecutive steps, is a procedural law. The law being procedural and for the benefit of the defendant, its provisions may be waived by the defendant. In the recent case of Green v. Small, 227 La. 401, 79 So.2d 497, we held that the defendant waived his right to claim abandonment by appearing in court and filing a stipulation and a plea of prescription.

Appellee cites the case of State v. United Dredging Co., supra, in support of its argument that the judgment of the lower court dismissing plaintiff’s suit was correct, relying on the following statement there: ' “It is the settled jurisprudence * * * that, when a plaintiff permits five years to elapse without having taken affirmative action in the suit, he is conclusively presumed to have abandoned it and that no further proceedings can be had with reference to it other than to strike it from the docket.”

In the United Dredging Co. case the question to be decided was whether the provisions of Article 3519 were prescriptive in nature and therefore inapplicable to the State under the provisions of the Louisiana Constitution. The statement on which defendant relies was not necessary for a decision of that case, and the conclusive presumption of abandonment to which the court there referred was meant to apply only to the plaintiff. This is made perfectly evident by the fact that in that opinion the court recognized the well-established rule that a defendant may by his affirmative action waive abandonment, and cited cases so holding.

Since in the instant case plaintiff permitted five years to elapse without taking any action in the prosecution of its suit, defendant could have come into court and moved to have the suit dismissed under Article 3519 of the Civil Code. Instead of taking this step', however, defendant elected to seek and obtain an order for a bond to cover the cost of preparing for trial. Consequently we fully agree with the Court of Appeal in its statement in the companion case that “ * * * when the defendant * * * filed a motion requesting that the court order plaintiff to post a bond for costs, it expressed a willingness to proceed with the trial and took an affirmative step in the prosecution thereof and thus waived its right to invoke the plea of abandonment * * * ”. See 78 So.2d 203.

The judgment appealed from is set aside, and the case is remanded to the district court for trial. All costs are to await final determination of the case.

      . Article 3519 of the Civil Code provides: “ * # * "Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”


author: HAMITER, Justice.

text:
    230 La. 205
    Albert STOCKSTILL et al. v. Albert M. COTTEN et al.
    No. 42840.
    Supreme Court of Louisiana.
    May 7, 1956.

      Brumby, Aycoclc, Horne & Caldwell, Franklin, for defendants-appellants.
    E. L. Guidry, Jr., Willis & Willis, by J. B. Willis, St. Martinville, for plaintiffs-appellees.
   HAMITER, Justice.

In this jactitation action affecting certain lands situated in St. Martin Parish the defendants, in limine and pursuant to the provisions of LSA-R.S. 13:5063, filed an exception of want of possession alleging and pleading plaintiffs’ lack of sufficient possession of the property to institute and prosecute the proceedings.

A hearing was held solely on the exception (no answer has been filed) at which .considerable evidence was introduced by the .respective parties on the question of possession. Subsequently, the court rendered and signed a judgment “in favor of plaintiffs and against the defendants, dismissing defendants’ exception of want of possession, at their costs.”

From that decree the defendants requested and obtained the instant appeal. Plaintiffs have moved to dismiss it, urging that the ruling “is not a final judgment but rather interlocutory in character and causes no irreparable injury and therefore cannot sustain an appeal.”

“Interlocutory judgments do not decide on the merits; they are pronounced on preliminary matters, in the course of the proceedings.” Code of Practice Article 538. “Definitive or final judgments are such as decide all the points in controversy, between the parties. Definitive judgments are such as have the force of res judicata.” Code of Practice Article 539. “One may appeal from all final judgments rendered in causes in which an appeal is given by law, whether such judgments have been rendered after hearing the parties, or by default.” Code of Practice Article 565. “One may likewise appeal from all interlocutory judgments, when such judgment may cause him an irreparable injury.” Code of Practice Article 566.

If the ruling from which this appeal was taken be considered interlocutory in character it, unquestionably, will not and cannot cause defendants any irreparable injury. Hence, the appeal is not authorized by the quoted Article 566.

It is equally clear that the judgment appealed from is not definitive or final as contemplated by the quoted Articles 539 and 565, all of the points in controversy between the parties not having been decided. For example, no determination has yet been made of the allegation of the petition that defendants have slandered plaintiffs’ title to the property, the matter of slander being an essential element in an action of this kind. See Wilson v. The California Co., 226 La. 144, 75 So.2d 224. Moreover, if and when defendants file an answer they might well assert therein ownership of the lands, thereby converting the suit into a petitory action, in which event there would have to be decided the important question of title. In this connection the court cannot anticipate the course of this litigation with respect to issues and trials.

Directing attention to the provisions of LSA-R.S. 13:5063 appellants, to sustain this appeal, contend that the judgment rendered decides the fundamental issue of possession on the merits of the action and that if no appeal is now permitted it will become definitive and res judicata. The cited statute, the source of which was Act 241 of 1946, recites: “Whenever in any action of jactitation or slander of title any defendant desires to raise as a defense lack of sufficient possession of the property involved therein by the plaintiff or plaintiffs to institute and prosecute such action, or failure of the plaintiff or plaintiffs’ petition to allege sufficient possession of the property involved therein by the plaintiff or plaintiffs, to institute and prosecute such action, such defendant shall raise and plead all such defenses by means of and in an exception or exceptions filed in limine litis.” The argument of appellants is that by these provisions the “Legislature divorced the question of possession vel non from all other questions on the merits in a jactitory action” and now requires that a lack of possession as a defense must be raised and determined on an exception filed in limine litis.

It is true that in an action in jactitation the question of possession, as well as of slander and sometimes of damages, is important in a determination of the merits. It is also true, however, that a plaintiff’s right to resort to such a suit depends on his having the requisite possession. And it is the matter of the right to so sue and proceed (not of the real merits of the case) that the above quoted statute obviously addresses itself, for as its language discloses that which is thereby required to be raised by an exception filed in limine litis is “lack of sufficient possession of the property involved therein by the plaintiff or plaintiffs to institute and prosecute such ac~ tion”.

When such an exception is filed, heard and overruled (as occurred in this case) the defendant can then answer, setting up his real defenses or converting the suit into a petitory action, after which the cause is to be tried on its merits. Of course, at the trial plaintiff, as above shown, will be required to prove the possession which he seeks to protect; however, in making the proof the evidence adduced on the hearing of the exception may be offered and introduced, just as was done in Ware v. Baucum, 221 La. 259, 59 So.2d 182. And following the trial of the merits, on the issues created by the petition and answer, the court will pronounce a definitive or final judgment resolving such issues. From that judgment the party cast can obtain and perfect an appeal and thereby obtain a review of the entire proceedings.

Appellants, in support of their position herein, rely heavily on Cary v. Richardson, 35 La.Ann. 505, in which the court said: “An interlocutory judgment should not trench upon the merits of the cause; but the moment it does, it acquires a character of finality, which assimilates it to a final judgment and renders it appealable. It is not essential for a judgment to be final, that it should settle all the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merits of the action. The judgment is none the less final, because some future orders of the court may become necessary to carry it into effect. ‡ Jj{ >Ji it

As pointed out above the judgment herein determined merely plaintiffs’ right to pursue the jactitory action, not issues involved on the true merits of the cause. Again, the judgments in the Cary case and in Garland v. Dimitry, 164 La. 875, 114 So. 718 (which followed the former), unlike the judgment here, “disposed of the entire merits of the cases, with the exception of an accounting to be done, which was to be done in furtherance, or in execution, of the judgments, forming the bases of the appeals.” See Feitel v. Feitel, 169 La. 384, 125 So. 280, 281.

Under our procedural law, therefore, the instant appeal is unauthorized. “ * * * The law does not favor the bringing up of cases by fragments, and therefore has provided no appeal from interlocutory decisions unless they work irreparable injury. * * * ” Wolff v. McKinney, 21 La.Ann. 634, this excerpt was referred to approvingly in Succession of Willis v. Willis, 229 La. 293, 85 So.2d 520.

For the reasons assigned the appeal is dismissed.


author: •MOISE, Justice.

text:
    230 La. 211
    Woodrow H. BEAN v. HIGGINS, Inc. and Columbia Casualty Company.
    Nos. 42361, 42368.
    Supreme Court of Louisiana.
    May 7, 1956.
    Walter M. Barnett, Cicero C. Sessions, John W. Read, New Orleans, Montgomery, Barnett, Brown, Sessions & Read, New Orleans, of counsel, for defendants-appellants.
    Claude F. Kammer, New Orleans, for plaintiff-appellant.
   •MOISE, Justice.

In the exercise of our supervisory control, Article VII, §11, Constitution of 1921, LSA, we granted writs to review a judgment of the Court of Appeal for the Parish of Orleans, which affirmed the judgment of the District Court awarding compensation to plaintiff for permanent partial disability, in the sum of $19.6714 per week (65% of the difference between plaintiff’s regular wage of $55.27 per week and $25 per week he is now able to earn) — the payments not to exceed 300 weeks — all of which would be subject to certain enumerated credits.

Plaintiff contends that there was error in the award made, because he sustained total permanent disability.

The defendant employer and its insurer contend that the award should be limited and restricted to the benefits provided for in Section (4) (e) of LSA-Revised Statutes 23:1221.

On September 18, 1953, plaintiff was working at Higgins, Inc., as a welder’s helper. At the time he sustained his injuries, he was performing services in the scope of his employment. He had to get on a ladder in an effort to turn off the cooling mechanism of a welding machine. To do this he used his right hand. The fan of the'mechanism struck that hand, resulting in extensive lacerations, contusions and abrasions, with amputation at the junction of the proximal and middle third of the middle phalanx of the middle or third finger, and extensive lacerations, contusions and abrasions of the ring or fourth finger. There is shown, as a fact of record, that plaintiff had previously suffered disability in his fifth or little finger. It would now appear that the only undamaged fingers on his right hand (and he is right handed) are the thumb and the index finger.

Defendants contend that plaintiff has completely recovered, and that he was paid compensation during the period of his disability to work. In the alternative, they contend that plaintiff should only receive 7% of 65% of his weekly wages for a period of 150 weeks, Section (4) (e) of LSA-Revised Statutes 23:1221, and this to apply only in the event that he is still disabled.

Plaintiff is forty-five years of age, and he is the father of six children, who depend on him for support. At the time of the trial, he was suffering considerable pain in several fingers.

It is shown, as a fact, that he tried to rehabilitate and establish himself by actually working, and that, therefore, he is not a malingerer. He was employed in several positions, and he claims that he was unable to properly perform the work because of his physical disability. The President of the Arrow Trucking Service testified that plaintiff worked for that company as a car washer since the accident, but that because of his physical disability it was most difficult for him to perform the work. Plaintiff thereafter obtained employment in lifting, hauling and truck driving for Solari’s Store in New Orleans, for which he was paid a weekly wage of $25. He claims that because his fingers were constantly being knocked and hit and not being able to use the fingers on his right hand as before the accident, he lost his position.

This injured hand showed callouses. Dr. Irwin Cahen, defendants’ medical expert witness, was asked this question:

“Does it appear from the nature of the callouses which you have observed that he has done recent laborer’s work?”
He replied: “Yes.”

To the unbiased mind this should show that plaintiff was working hard and that he was making an effort to earn a living, because these callouses appear on his injured hand.

Although Dr. Daniel C. Riordan, another medical expert witness for defendants, stated that work would improve the condition of plaintiff’s injured hand, he testified that it was in a worse condition than before plaintiff performed work with it.

Dr. Blaise Salatich testified that plaintiff had a neuromata. A neuromata causes pain. Dr. Salatich was of the opinion that an operation would he necessary to ease the pain, but that such an operation would not enable plaintiff to perform the same duties he did before the accident.

Medical testimony, as to whether a future operation on plaintiff’s hand is necessary, is purely speculative.

It is true that the defendant employer and its insurer had a majority of medical experts. Mere numerical numbers, of experts is not sufficient for a determination of a decision in any case. We must take the overall picture of all the facts and circumstances, and more particularly the physical facts demonstrated in the record. The physical fact of an experiment in open court should be persuasive, because plaintiff could not even pick up a book with the injured hand.

Our Learned Brothers of the District Court and the Court of Appeal determined that plaintiff’s disability, although permanent, was only partial. We have studied the record and disagree with their ' findings. We have concluded that plaintiff is permanently totally disabled.

“ * * * The test of total and permanent disability is whether the injured employee is capable of performing the work or the occupation in which he was engaged at the time of injury or whether he is able to do the kind of work he is trained to do or customarily does in the usual and customary way and without any serious impairment of his capacity to perform such work. * * * ” Reeve v. Clement-Braswell Machine & Fabricating Works, La.App., 66 So.2d 387, 390. See, also, Fruge v. Pacific Employers Ins. Co., La.App., 71 So.2d 625; Id., 226 La. 530, 76 So.2d 719; Morgan v. American Bitumuls Co., 217 La. 968, 47 So.2d 739; Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695.

A welder’s helper is not 'as skilled as a welder, but his work is of a dangerous character, and he receives compensable wages. There is no doubt that plaintiff will never be able to resume the work of a welder’s helper — the occupation he was engaged in at the time of his injury. If a welder’s helper is not a skilled worker and his work can be classified as only one phase of common or manual labor, plaintiff is unable — as shown by the evidence— to perform heavy manual labor.

The testimony is clear that plaintiff suffers considerable pain in the severed digit, and that hitting and knocking it increases his distress. In the case of Coon v. Germany Iron Works, La.App., 81 So.2d 83, 85, it was ably stated:

“ * * * With the pronouncements of those cases and with that in Carlino v. United States Fidelity & Guaranty Co., 196 La. 400, 199 So. 228, to the effect that a workman is deemed totally disabled within the meaning of the Statute where a resumption of work following an injury causes great pain and suffering, we are in full accord. * * * ”

It follows that whether plaintiff was a skilled laborer or a manual laborer, he is now permanently and totally disabled to do work of any reasonable character.

We are convinced that plaintiff’s total disability is permanent. But, should there be recovery, defendants would be entitled to an action for termination of compensation payments. Johnson v. Lone Star Cement Corp., La.App., 51 So.2d 658.

We feel that cases of the nature and character of the present one have some exceptions to the general rule of. decided cases. The statute being purely humanitarian in nature, we should take into consideration the philosophical background of the law, because in so many instances that is the reason that induced the Legislature to adopt it. The historical background of the Workmen’s Compensation' Law is set out in the case of Herring v. Hercules Powder Co., 222 La. 162, 62 So.2d 260, 261, which reads:

“Historical Background: The Workmen’s Compensation Law originated in Germany. From Germany the law infiltrated into France, from France into England and from England into the United States of America. A German industrialist calculated that he had to include the cost of repair and replacement of his industrial machines in connection with his industrial operations, and that a necessary part of such operations were his employees, who, while performing services, were often injured, sometimes beyond repair or replacement. In his calculations, he discovered that he had made no provision for the repair or replacement of these human machines. Thereupon, he conceived the idea that he would apply the same rule as to cost of industrial machines to the human machine, and thusly, the Workmen’s Compensation Law came into being. The Law — Act No. 20 — was born in Louisiana in 1914.”

In the decision of workmen’s compensation cases, each case must depend on its own peculiar facts, and from these facts as related we should apply what is prescribed in the statute. Therefore, we cannot be bound by isolated fragments of jurisprudence considered separate and apart from the circumstances of fact which evoke them. On the facts, as applied to a liberal construction of the law, the case must stand or fall. We should not be bound by previous dicta of decided cases which relate in a general way to the issues at hand. The facts may be different. The utterings of courts of appellate jurisdiction in these cases are not sacrosanct; rather, we are obliged to weigh them in the light of all facts and circumstances, taking into consideration the history of the legislation — a matter which in most probability induces the Legislature to pass the law.

The writs are made peremptory; the judgment of the Court of Appeal, affirming the judgment of the District Court, is amended so as to allow plaintiff permanent total disability (65% of his wages during the period of his disability, for a period not beyond 400 weeks) less enumerated credits. Defendants are to pay all costs.

McCALEB, J., concurs in the decree.