author: LOTTINGER, Judge. PER CURIAM.

text:
    Rev. Lawyer FIELDS et al. v. Phillip RE BOWE, d/b/a Sungold Inn.
    No. 4102.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Feb. 3, 1956.
    Writ of Certiorari Denied March 26, 1956.

      Hynes Mathews & Lane, Baton Rouge, for appellant.
    Johnnie A. Jones, Baton Rouge, for ap-pellees.
   LOTTINGER, Judge.

This action originated as a complaint filed by the plaintiffs with the Louisiana Board of Tax Appeals wherein they sought the revocation or suspension of 1955 liquor and beer permits issued by the State to the defendant, and 1955 liquor and beer licenses issued by the Parish of East Baton Rouge to the defendant. The complaint was dismissed by the Board of Tax Appeals and the plaintiffs then appealed to the 19th Judicial District Court for the Parish of East Baton Rouge. Following trial on the merits, in the court below, the decision of the Board of Tax Appeals was affirmed. Plaintiffs then applied for and were granted a rehearing, following which the lower court reversed the judgment of the Board of Tax Appeals and revoked the defendant’s 1955 State and Parish licenses. The matter is now before us on an appeal taken by the deféndant.

The court below furnished written reasons for judgment which we herewith set out in- full:

“This is an appeal from a ruling of the Louisiana Board of Tax Appeals of date April 13, 1955, wherein the said Board refused to comply with the demand of petitioners, Rev. Lawyer-Fields, Acie Belton and Clyde Milli-gan, residents of this parish, to revoke or suspend a 1955 liquor and beer license issued to him by the State and a. liquor and beer license issued to him by the Parish of East Baton Rouge.
“The petitioners allege that Rebowe-is conducting a bar room at 1328 Sora. Street, Scotlandville, Louisiana, pursuant to said licenses.
“They further allege:
“ ‘2. That the said Permittee, his-agents, employees or representatives-have violated Louisiana Revised Statutes 26:80 (C) and 26:280(C) ; in that,, said Sungold Inn is situated within' three hundred (300') feet or less of the-Greater Mount Carmel Baptist Church and that, said Church had been long-constructed and established in the practice and teaching of the Christian-Faith long before the establishment of Sungold Inn for the purpose of selling-liquor and beer at retail.
“ ‘3. That the said permittee, his-agents, employees or representatives-have violated Louisiana Revised Statutes 26:75, 26:76, 26:77, 26:275, 26:276, and 26:277; in that, the said permittee is presently operating on license issued under an application of renewal when in fact the Sungold Inn was a new place of business with a new location.
“ ‘4. That the said permittee, his agents, employees or representatives made misstatement and suppressed facts in the original application of renewal by failing to disclose the present location of said Sungold Inn and by so ■doing the permittee violated Louisiana Revised Statutes 26:82 and 26:281".
“ ‘5. That permittee, his agents, employees or representatives violated Louisiana Revised Statutes 26:88(1) and 26:285(1) in that he did on the 7 day of January, 1955, sell and/or serve liquor and beer to one Charles Louis Williams, a minor under the age of eighteen years.
“ ‘6. That the permittee, his agents, employees or representatives have committed certain acts and allowed certain acts to be committed upon the premises known as Sungold Inn, 1328 Sora Street (Scotlandville Area) Baton Rouge, Louisiana, which are in violation of Louisana Revised Statutes 26:88 (3) and 26:285(3) in that he permits one Charles Louis Williams under the age of seventeen years to visit and loiter in and about the said Sungold Inn.
“ ‘7. That the permittee, his agents, employees or representatives have violated Louisiana Revised Statutes 26:88 (5) and 26:285(5) in that said permittee or his representatives permit disturbances of the peace and/or obscenities in and about the premises of said Sun-gold Inn all of which can be established by the Sheriff’s records for the Parish of East Baton Rouge, State of Louisiana.
“ ‘8. That the permittee, his agents, employees or representatives have violated Louisiana Revised Statutes 26:88 (2) and 26:285 (2) in that on the 5 day of February, 1955 said -permittee or his representatives did sell or serve liquor and beer to one Issaac Kelly and one Gertrude Smith who were then intoxicated persons.’
“Before answering, the defend- and, Rebowe, filed an exception, reading as follows, to-wit:
“ ‘Now into Court, through undersigned counsel, comes Phillip Rebowe, defendant herein, and excepts to the jurisdiction of the Court rationae ma-teriae on the ground that [LSA-] R.S. 26:301 et seq. and other pertinent provisions of law provide an appeal only from a decision of the Board of Tax Appeals to withhold, suspend or revoke a permit and no appeal is provided from a decision against withholding, suspending or revoking a permit.’
“This exception is based upon the wording of LSA[-R.S.] 26.301 and 26:302, which sections read as follows:
“ ‘§ 301. Decisions of the board of tax appeals in withholding, suspending, or revoking permits and of the collector or local authorities in withholding permits are final and binding on all parties unless appealed in the manner provided in R.S. 26:302 and finally reversed by the courts.
“ ‘§ 302. Any party aggrieved by a decision of the board of tax appeals to withhold, suspend, or revoke a permit or of the collector or local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court haying jurisdiction of the applicant’s or permittee’s place of business, proposed or actual, as the case may be. Such appeals shall be granted by the clerk of court on written petition together with a bond for costs. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard.
“ ‘Within ten calendar days of the signing of the judgment by the district court in any such appeal cases, any aggrieved party may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases but shall be de-volutive in their nature and effect.’
“It will be conceded that if the above quoted'sections of the statutes were the only provisions of law relating to the right of appeal from judgment of the Board of Tax Appeals, .there would be some doubt as to whether in a case of this kind, the applicants for the revoca-, tion of the liquor licenses have the right of appeal to this Court, and whether this Court has jurisdiction. I have heretofore overruled the exception to the jurisdiction of the Court for two reasons:
“(1) It is inconceivable to me that when the right is conferred by law upon citizens to protest to the Board of Tax Appeals against the improper issuance of liquor and beer licenses, (which right is given by LSA [-R.S.] 26:283) they do not havy the right of appeal from an adverse decision of the Board.
“(2) The general law upon the subject of appeals from decisions of the Board of Tax Appeals, namely, LSA [-R.S.] 47:1435 confers such right. It reads as follows:
“ ‘§ 1435. The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspensive only, in accordance with law. If a suspensive appeal is taken from a judgment of the district court no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
“ ‘Upon such review, such courts shall have the power to affirm or, if the decision or judgment of the board is, not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as. justice may require.’
“This section was referred to in. Richardson v. Parish Council of Parish of East Baton Rouge [La.App.], 53 So.2d 458.
“We come now to a consideration of the case on the merits. In the. first hearing the Court concluded that the evidence offered in support of paragraphs 4, 5, 6, 7, and 8 of applicant’s petition was not sufficient to justify- a reversal of. the judgment appealed from. I am still of that opinion.
“As to the attack upon the legality of the permits issued to appellee Re-bowe to conduct a liquor and beer business at 1328 Sora Street, Scotlandville, I am of the opinion that the decision first rendered herein was erroneous and it is therefore set aside. The decision of the Orleans Court of Appeal, found in [Morris v. Louisiana Board of Alcoholic Beverage Control] 57 So.2d 593 therein referred to and relied upon, I think, is inapplicable to the facts of this case.
“The facts here, as disclosed by the evidence, are substantially as follows:
• “The licenses issued to Rebowe to sell beer and liquor at 1328 Sora Street for the year 1950 were in compliance with his application of date January 5, 1950. In that application we find this question:
“ ‘Is the location of the business covered by this application in an area where the sale of alcoholic beverage or beer is prohibited by local laws (Municipal, Parish, or Ward).’
“This question was answered in the negative. The answer was not true, as at that time and now Rebowe’s place of business was less than 300'feet of Mount Carmel Baptist Church. The Parish ordinance of 1948 — the ordinance under which the application was made, prohibited, as does the present Parish ordinance, the sale of liquor or beer within 300 feet of a church. The original permit was therefore illegally obtained. For every license issued to Rebowe after 1950, he has filled an affidavit asserting in effect that the allegations of the application of 1950 were true and correct, when as a matter of fact, they were not.
“The licenses he obtained for the year 1955, here attacked, it is true, were issued under the ordinance of 1948 and not under the ordinance of December 8, 1954. The ordinance of 1948 (now repealed and replaced by the ordinance of December 8, 1954) with respect to the sale of liquor and beer within 300 feet of a church, reads as follows:
“ ‘No permit shall be granted for any premises situated within five hundred (500) feet, or less distance, of a building occupied exclusively as a church, synagogue, public library, public playground, or school, except a school for business education conducted as a business college, or school.’
“Rebowe’s false representation in his original application of 1950 that the location of the business to be conducted was not in an area where alcoholic beverages or beer was (prohibited to be) sold was continuously repeated thereafter, and his 1955 license (issued pursuant to the ordinance of 1948) was issued upon the strength of this false statement. Therefore, as I see the case he has never had a lawful license to sell liquor or beer from 1950 to the present time.
“To say that under such facts and circumstances one could obtain a prescriptive right to conduct a bar room within 300 feet of a church would, in my opinion, be a mockery. Suppose the bar room was next door to the church, could it be said the licenses could not be revoked because forsooth, for a number of years the owner and operator of the bar had been located there under false representations contained in his application? I think not. LSA[-R.S.] 26:286 expressly provides that liquor or beer licenses may be revoked ‘If there was any misstatement or suppression of fact in the application for the permit.’
“For these reasons I hold that the licenses issued to Rebowe for the sale of liquor and beer at the ‘Sungold Inn,’ 1328 Sora Street, for the year 1955 were illegally issued, and therefore should be and the same are hereby revoked.
“Judgment will therefore be signed reversing the judgment of the Board of Tax Appeals and revoking the 1955 State and Parish licenses issued to Re-bowe for the year 1955 for the conducting of a bar room at 1328 Sora Street, less than 300 feet of Mount Carmel Baptist Church, appellee, Rebowe, to pay all costs of this appeal.”

A review of the record sustains the findings of fact by the trial judge. There is no question but that the defendant’s place of business is located within the prohibited distance from the Mount Carmel Baptist Church. While there is no evidence to sustain the allegations of paragraphs 5, 6, 7 and 8 quoted in the trial judge’s opinion, we are of the opinion that the trial judge’s legal conclusions are correct and that the judgment appealed from should be affirmed.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.

On Application for Rehearing

PER CURIAM.

Counsel for the appellant in his application for rehearing rests his expectation of a favorable ruling upon the following argument contained in the application, viz.:

“Error of Law
“The basic ordinance involved is the City-Parish Liquor Ordinance of 1948. The ordinance in identical form (with one exception which is immaterial to this case) has been repealed and readopted each year from 1948 to date.
“The Court quotes the pertinent section of this Ordinance.
“ ‘No permit shall be granted for any premises situated within five hundred (S00) feet, or less distance, of a building occupied exclusively as a church, synagogue, public library, public playground, or school, except a school for business education conducted as a business college, or school.’
“However, that is only half of the section and half of the sentence. The full sentence continues as follows:
’ “ ‘ * * * provided that the provisions of this section shall not apply to premises which are maintained as bona fide hotel, railway car, or fraternal organization, nor to any premises licensed to deal in beverages of low alcoholic content, for a period of one year or longer prior to the passage of this ordinance.’
“What a tremendous difference it makes when the whole section is considered! If it were not for the latter proviso, many places in this parish, established for many years before the ordinance, would have to close. Re-bowe’s defense is based on tlie portion of the ordinance which the Court neglected to quote and to consider.”

The facts are clear that defendant’s vendor, one Joe Zito, in 1947 operated a grocery and barroom business in the “Michelli Building” located at 8480 Baker Road. He then bought the lot to the rear of his place of business facing on Soro Street and sometime in 1948 placed a building thereon and moved his liquor business therein in 1949. In 1949 he sold the business to Rebowe, defendant herein.

The original “Michelli Building” in which he operated was approximately 380 feet as measured under the provisions of the Act from the church in question. However, the new building which he placed to the rear of the “Michelli Building” was approximately 201 feet from the church.

When Zito moved his liquor business into the new building in either 1948 or 1949 prior to selling it to Rebowe, it became a new business and it, therefore, was not in operation for a period of one year or longer prior to the passage of the 1948 or 1949 Ordinance, and was not protected by the provisions of the law which counsel for appellant complains this court failed to consider. Had Zito operated the business in the new building for a period of one year or longer prior to the passage of the Ordinance of 1948 appellant’s contention might be sound. Zito was not entitled to a license under the law for the business which he opened in the new building in 1948 or 1949 and the issuance of a license each succeeding year thereafter was contrary to the law.

For these reasons the re-hearing will be denied.


source: Caselaw Access Project

author: REGAN, Judge.

license: Public Domain

text:
    Martin V. HOLDER v. DELTA LIFE INSURANCE CO.
    No. 20548.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Feb. 6, 1956.

      James J. Grevemberg, New Orleans, for plaintiff-appellant.
    Roos & Roos, New Orleans, for defendant-appellee.
   REGAN, Judge.

Plaintiff, Martin V. Holder, the insured, instituted this suit against the defendant, Delta Life Insurance Company, endeavoring to recover alternatively for the loss of both feet the sums of $750, $650 or the return of the premiums paid after May 20, 1953, on two policies of insurance, reflecting primary death benefits in the respective amounts of $300 and $250 and! which were issued under the dates of November 8 and November 15, 1943.

The defendant answered and admitted' the issuance of the foregoing policies, but denied that it was liable to the plaintiff in any amount whatsoever since the policies-excluded any loss caused by injury or disease incurred by the insured prior to the-date of the issuance of the policies.

From a judgment in favor of defendant dismissing plaintiff’s suit, he has prosecuted' this appeal.

It is conceded that the plaintiff suffered: from a “circulatory condition” designated as “Buerger’s Disease” for several years-prior to the issuance of the foregoing contracts of insurance; that as a result thereof his right leg was surgically amputated below the knee on March 18, 1951 and his left leg was similarly removed oni May 20, 1953. Following the first operation plaintiff filed a claim with the defendant for $125 for the loss of one foot ostensibly in conformity with the provisions, of one of the policies. Defendant refused’ payment thereof for the reason that the loss-was incurred by virtue of a disease which existed prior to the issuance of the insurance. Plaintiff continued payment of the-premiums as they matured and, as a result,, both policies were in full force and effect when the second amputation occurred to-the lower left leg on May 20, 1953. Thereafter demand was again made upon the-defendant for the payment of the loss of both feet in conformity with Schedule B-of each policy and liability was again denied for the same reason.

Each of the policies provided for primary-death, accidental death and disability benefits for the loss of both hands, feet or eyesight. The accidental death and disability benefits are “granted without the-payment of additional premiums” and “upon receipt of due proof that the insured has-suffered the loss by severance of both hands or both feet, or of one hand and one foot, or has suffered irrecoverably the: loss of the entire sight of both eyes, the insured will be deemed totally and permanently disabled. * * * These additional benefits shall be granted only if such loss occurs solely as the result of disease or injury contracted or sustained after the date of this policy.”

The policies further contained an “Incontestable Clause” which reads:

“This Policy shall be incontestable after it has been in force and effect for a period of one year from its date of issue, except for non-payment of premiums, and except as to provisions and conditions relating to misstatement of age, Suicide, Accidental Death, total and permanent disability, aeronautics, military and/or naval service.”

Defendant concedes that it not only refused to recognize the claims asserted by the plaintiff, but that it also refused to return to him the paid premiums and that it continued after the occurrence of the first amputation to accept from him the premiums as they matured on the respective policies of insurance. In resisting the •claim of plaintiff, defendant maintains that the policies exclude any loss caused to the plaintiff by injury or disease incurred by him prior to the date of the issuance of the contracts of insurance and that the premiums collected from the plaintiff were for the primary death benefits, since the other benefits were granted without the payment of additional premiums

■ Plaintiff, on the other hand, insists that the defendant was guilty of “misrepresenting the provisions of the policies” for the reason that when the defendant declined to recognize plaintiff’s initial claim for the loss of his right foot and subsequently accepted the premiums as they matured on these policies that it, in effect, waived, insofar as the second amputation was concerned, the unsound health clause or that condition of the policy which reads “these additional benefits shall be granted only if such loss occurs solely as the result of disease or injury contracted or sustained after the date of this policy.”

The contracts of insurance reflect that it was clearly the intention of the parties that even after the expiration of the period of one year, as revealed by the rationale of the incontestable clause, the loss of limbs or eyesight caused by a disease existing prior to and at the time the policy was written was not one encompassed by the terms of the policy, but one expressly excepted therefrom. When the claim for the loss of the right leg was asserted in 1951, the defendant properly refused to pay the benefits enumerated in the policy for the reason that the loss resulted from a disease existing at the time the policy was issued. The defendant was also compelled to continue to accept the premiums if the insured wished to pay them since it could not then void the policies under the unsound health clause because such a course of action was barred by the incontestable clause that is, the policies had to remain in force insofar as the death benefits were concerned and similarly for any loss of limb or eyesight which might result from a disease or injury contracted or sustained after the date of the issuance of the policies. The plaintiff is, therefore, not entitled to recover either for the loss of his feet or the premiums.

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

Affirmed.


author: McBRIDE, Judge.

text:
    Henry J. VEITH, Jr. v. Raymond Harold REYNOIR.
    No. 19350.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Feb. 6, 1956.
    Frederick G. Veith, New Orleans, for plaintiff and appellant.
    Harry R. Cabral, Harry R. Cabral, Jr., and King F. Nungesser, Jr., New Orleans,, for defendant and appellee.
   McBRIDE, Judge.

Plaintiff, who is doing business as Veith Plumbing Supply Company, on November 3, 1947, sold and delivered to defendant two' lavatories, two toilets, and two bathtubs for installation in defendant’s property, 4338-40 South Carrollton Avenue. The purchase price of these articles aggregated $354.32, which defendant paid by giving his check to plaintiff.

On November 18, 1947, plaintiff sold and' delivered to defendant certain “roughing in” materials, that is, the pipe fittings, etc.,, necessary to install the above-mentioned' fixtures. The price of the roughing-in material was $316, for which defendant gave-to plaintiff his check which was never cashed by plaintiff because defendant “stopped payment” thereon. By means of this suit plaintiff seeks to recover the-amount of the check from defendant.

Defendant in his answer denies any indebtedness to plaintiff, and then assuming the character of plaintiff in reconventiora claims that plaintiff owes him $462.10. It is alleged that the two bathtubs were returned to and accepted by plaintiff and that the two lavatories were defective and were tendered to plaintiff who refused to accept them. Defendant seeks recovery of the price of the two bathtubs and the two lavatories, plus drayage charges.

After hearing the evidence and making a visual inspection of the lavatories, the trial judge gave judgment to plaintiff for $316 as prayed for and allowed defendant to recover $278.60 on his reconventional demand. Plaintiff has appealed and the only question which the appeal presents is the correctness of the judgment in defendant’s favor as reconvenor.

The plaintiff complains that the trial judge erred in overruling his objection to the admission of evidence on the reconven-tional demand, the ground of the objection being that the demand in reconvention is not connected with or incidental to the main demand. On the surface it would appear that there had been two disconnected sales transactions between the parties, but the evidence shows conclusively that the transactions were related and grew out of an initial verbal agreement respecting plaintiff’s furnishing defendant with the necessary plumbing equipment, pipes, etc., to outfit the bathrooms in defendant’s premises. The record shows that about the time defendant desired to remodel the bathrooms, plumbing supplies were scarce and difficult to secure and the custom was that unless one purchased his plumbing fixtures from the supply house, the supply house would not sell him any roughing-in material. Plaintiff conceded that in consideration of defendant’s agreement to purchase the bathroom fixtures, he in turn agreed to sell defendant the necessary pipe, fittings, etc., whenever he required them. This accounts for the two sales transactions mentioned above and we believe that in the light of the circumstances surrounding these transactions the demand in reconvention, though ■different from the main action, is necessarily connected therewith and incidental to the same and meets the requirements of C.P. art. 375.

There is no dispute regarding defendant’s being entitled to recover for the two bathtubs. It appears that these articles differed from the floor sample which had been shown him and defendant was dissatisfied and subsequently returned the bathtubs to plaintiff, who, accepted them without objection. Defendant is entitled to $210 for the tubs, $6.30 for sales tax, and also $10.30 for drayage, as the plaintiff refused to send to defendant’s premises for the tubs. However, these credits must be reduced by the sum of $2 which represents two flanges which defendant failed to return.

As to the two lavatories, defendant claims they were defective and that he made complaint of the defects to plaintiff. After tendering the return of the lavatories and plaintiff’s refusal to accept them, defendant placed them in a warehouse for plaintiff’s account. The trial judge after hearing the evidence and after a visual inspection thereof concluded that one of the lavatories had a defect on the inside of the edge consisting of a roughness which was not smoothed out probably at the time of manufacture, and that the other had a blue mark imbedded in the enamel, apparently a defect in manufacture, on that part of the bowl about where the faucets would be located. The lavatories were offered in evidence by plaintiff below and produced before us, and after an examination of them our views coincide with those of the trial judge that there are defects in the two fixtures. Plaintiff contends that these are minor and that because of the then prevailing scarcity of plumbing fixtures, the defendant should have considered himself fortunate indeed in being able to secure them. This reasoning is unsound. While it is true the defects are small in size, they are of major proportions so far as the appearance of the fixtures is concerned. Had these defective fixtures been installed, they would have tended to mar the appearance of defendant’s bathrooms and we do not think that defendant, who thought he was buying perfect fixtures, should be compelled to accept and install the imperfect ones.

LSA-C.C. art. 2520 provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

We believe that the words “vice or defect” as used in the codal article should be given a reasonable interpretation and extended to include such defects as existed in the two lavatories which plaintiff delivered to defendant. The defects, without doubt, can be said to have rendered the use of the articles so inconvenient and imperfect that it must be supposed that defendant would not have purchased them had he been aware of the defects.

Plaintiff alternatively contends that as the defects were apparent and such as might be discovered by defendant on simple inspection, they are not numbered among the redhibitory vices. We do not think that this is true. The lavatories were in crates when purchased and defendant did not have the opportunity of viewing them until they were removed from their crates when ready to be installed by defendant’s contractor. Defendant first saw the lavatories when they were suspended on racks on the wall preparatory to installation and noticing the defects he immediately halted the work and made complaint to plaintiff. The fixtures were never installed, the record making it clear that when defendant observed their defective condition, he had his contractor remove the fixtures and recrate them. They had never been connected with the pipes and were tendered to plaintiff in the same condition as when plaintiff delivered them. The trial judge allowed defendant $50 for the two lavatories, plus. sales taxes and drayage, a total of $54, and the judgment recognized plaintiff to be the owner of the two lavatories. This was correct.

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

Affirmed.


text:
    Hal E. WIGGS v. WARREN REALTY COMPANY, Inc. et al.
    No. 20550.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Feb. 6, 1956.

      Frank P. Krieger, New Orleans, for Warren Realty Company, Inc., defendant and appellant.
    Henry B. Curtis, City Attorney, and Jorda S. Derbes, Asst. City Atty., New Orleans, for City of New Orleans, defendant and appellant.
    Clarence F. Favret, New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

This action was commenced as one for slander of title but was converted into a petitory when each defendant alleged itself to be the owner of the property. The property in contest is part of a square of ground bounded by Washington Avenue, South Galvez, South Miro and Toledano (formerly Upperline Avenue) Streets. The said square has been variously numbered 65, 77, and presently is No. 455, Fourth District of New Orleans. The disputed property has a front measurement of 18'4'T"' on South Galvez Street, with a depth of 123'0"4'" on the side separating it from Lot 1, a depth and front on Toledano Street of 122T1"1'", by a width in the rear of 19'4"5'".

To state the issues simply, plaintiff is in possession and claims ownership of the property; he alleges that Warren Realty Company, Inc., and the City of New Orleans are slandering his title and are laying claim to the property; that under date of May 8, 1952, Warren Realty Company, Inc., caused to be filed in the Conveyance Office for the Parish of Orleans an ex parte decía-ration of its pretended ownership styled “Notice of Ownership of Real Estate”; that said defendant claims to have acquired its right of ownership by reason of the fact that it had bid the sum of $1,400 for the said portion of land at a public auction held by the City of New Orleans on April 2, 1952; that the said inscription on the Conveyance Records is null and void and should be ordered cancelled; that the Register of Conveyances for the Parish of Orleans should be joined and cited as a defendant. Several former owners of the property, as warrantors, are also impleaded as defendants, but these need not be named here.

Plaintiff’s prayer is that the Warren Realty Company, Inc., and the City of New Orleans be ordered either to disclaim any interest whatsoever in the property or to assert whatever interest they claim to have therein; he further prays that there be judgment decreeing him to be the sole owner of the property and ordering the Register of Conveyances to cancel and erase from the records of his office, and particularly from Book 581 folio 694, the “Notice of Ownership of Real Estate” filed by Warren Realty Company, Inc.

The City of New Orleans answered denying that the Warren Realty Company, Inc., ever acquired any rights in the property. The answer further alleges that the City owns the property. The City’s prayer is that its ownership be recognized and that the declaration filed by Warren Realty Company, Inc., in the Conveyance Records be decreed to be null, void and of no effect and- ordered cancelled.

Warren Realty Company, Inc., first filed a plea of estoppel which was overruled. In answer it set forth its claim of ownership and prayed for judgment decreeing it to be the owner of the property and for further judgment ordering the City of New Orleans to accept the price thereof, to-wit: $1,400, which is the amount bid for the property by Warren Realty Company, Inc., at the public sale held by the City.

The case was tried and judgment was rendered in favor of the plaintiff against Warren Realty Company, Inc., and the City of New Orleans recognizing him to be the owner of the disputed property; the judgment commanded the Register of Conveyances of the Parish of Orleans to cancel and erase the inscription of the “Notice of Ownership of Real Estate” filed by Warren Realty Company, Inc. The City of New Orleans and Warren Realty Company, Inc., have appealed.

Square No. 455, Fourth District of New Orleans, as the square in question is now designated, was formerly the property of John McDonogh and was part of the lands bequeathed by him to the cities of New Orleans and Baltimore. On May 10, 1859, these municipalities conveyed the said square to B. F. and J. Lotspeich, predecessors in title to plaintiff, designating it as Square No. 77 bounded by Washington Avenue, Miro Street, Galvez Street and Upper-line Avenue (now Toledano Street), as shown on a plan of L. H. Pilie, surveyor.

In all subsequent transfers up to and including the sale made by William L. Weil to Widow Joseph Ernst, on August 15, 1905, the square was sold as a whole and the plan of L. H. Pilie, surveyor, was consistently referred to in describing the property in each act. It was not until after the death of Mrs. Ernst in 1919 that an actual subdivision of the square was made. The property was partitioned by licitation by her heirs and Joseph Ernst became the adjudicatee of Lots 1 and 2 of Square 455. He sold these lots to Sarah F. Henderson on February 20, 1923. Miss Henderson subsequently died and by judgment rendered on July 24, 1945, in her succession proceedings, Emilie Magnin, as legatee, was sent and placed into possession of said Lots 1 and 2 under the following description;

A Certain Lot of Ground, together with all improvements thereon in the Square bounded by Washington Ave., Miro, Galvez and Toledano Streets designated as Lot 1 on a plan by W. J. Seghers, Deputy City Surveyor, dated May 13, 1920, annexed to an inventory taken by H. L. Loomis, Jr., Notary Public, on May 26, 1920, according to which said lot measures twenty-nine feet, eleven inches, one line (29/ll"l///) front on Galvez Street, one hundred twenty-three feet, four lines (123'4"') on the side towards Toledano St., eight feet, eleven inches and four lines (8'll"4m) in the rear and one hundred twenty-one feet, four lines in depth (12F4"') on the side line towards Washington Avenue, dividing it from Lot 2, together with all surplus between the side line and the actual street line of Toledano Street, and also a certain lot with all improvements in the same district and square as above described property and adjoining the same and designated as Lot 2 on the above referred to plan of Seghers and according thereto said lot measures thirty feet (30') front on Galvez Street by one hundred twenty-one feet and four lines (12V4"') between equal and parallel lines.

It thus appears that Emilie Magnin was recognized as the owner of and sent and placed into possession not only of Lot 1 and 2 but also of a certain surplus or excess of ground found by Walter J. Seghers, Deputy City Surveyor, to exist in Square 455, Fourth District, all as shown by him on his plan dated May 13, 1920.

On April 2, 1946, Emilie R. Magnin sold the property which she had acquired by the judgment of possession to Gerson and Rosenberg. The description of the property as contained in this act of sale is made with reference to a survey of J. J. Krebs, Civil Engineer, on March 30, 1946, a plan whereof is annexed to the act, and according to which the surplus or excess ground in the square adjoining Lot 1 was of greater dimensions than found by Seghers in his survey in 1920. Krebs shows the surplus as measuring 18'4"1'" front on South Gal-vez Street, with a depth of 123/0'/4//'’ on its side next to Lot 1,. a depth and front on Toledano Street of 122'H"!'", by a width in the rear of 19'4"5W. Gerson later disposed of his interest in the property to Rosenberg.

On February 17, 1949, Rosenberg sold Lots 1 and 2, together with the strip measuring 18'4'T"' front on South Galvez Street, to Duplessis and wife, and in the act of sale the property was described in accordance with the Krebs plan.

On July 31, 1951, Felix H. Kuntz acquired the property from Duplessis and wife. The description of the property in the act is the same as that contained in the preceding sales made by Magnin, Gerson, and Rosenberg,. except that in addition to Krebs’s plan a plan of the property made by F. C. Gandolfo, Jr., on July 23, 1951, is referred to.

The location of Upperline Avenue (now Toledano Street) as shown on plan of L. H. Pilie, in 1859, later proved to be erroneous. The surveyors who testified in the case unanimously agree that when Pilie in 1859 laid out on his plan the squares of ground which the cities of New Orleans and Baltimore acquired from John McDonogh, he did not make an actual survey in the field and his theoretical estimate of the area within the boundaries was erroneous because it was based on an imaginary projection of then Upperline Avenue. A slight error in the angle accounts for the discrepancy between his measurements and the actual location of Toledano Street. This was only discovered when Toledano Street was extended.

The expert witnesses also all agree that the City Map made by d’Hemecourt, who had been employed by the City of New Orleans, on December 1, 1856, to make “a general plan of the City of New Orleans, as well as plan books, and a general index to the same,” resulted from actual surveys and correctly reflects the location of what was then known as Upperline Avenue. The so-called surplus, or excess in Square 455, involved in this case results entirely from the Tact that d’Hemecourt shows the location of Upperline Avenue to be at a greater distance from Washington Avenue than Pilie did on his plan in 1859. d’Heme-court’s map insofar as it located Upperline Avenue was fully confirmed by Elbert G. Sandoz, Civil Engineer and Surveyor.

The original sale made by the two municipalities of the square of ground bounded by designated streets was clearly a sale per, aversionem and as the vendors sold all the land they owned from one fixed boundary to another, their vendee took all of the land between those boundaries. The Civil Code of 1825, Art. 850 (which is identical with Art. 854, LSA-C.C.) provides :

“If any one sells or alienates a piece of land, from one fixed boundary to another fixed boundary, the purchaser takes all the land between such bounds, although it give him a greater quantity of land than is called for in his title, and though the surplus exceed the twentieth part of the quantity mentioned in his title.”

When the property is described as being bounded by four streets, the sale is usually considered as being by metes and bounds. Labiche v. Jahan, 9 Rob. 30; Whitney v. Saloy, 26 La.Ann. 40.

It is the accepted rule that a sale by metes and bounds conveys all of the property found within the boundaries given. Johnston v. Quarles, 3 La. 90, 22 Am.Dec. 163; Curator of Grafton v. Wells, 4 La. 534; Harman’s Heirs v. O’Moran, 18 La. 526; Labiche v. Jahan, supra; Keay v. New Orleans Canal & Banking Co., 7 La.Ann. 259; Nichols v. Adams, 9 La.Ann. 117; Ragan v. Gwinn, 19 La.Ann. 133; Leonard v. Forbing, 109 La. 220, 33 So. 203; Randolph v. Sentilles, 110 La. 419, 34 So. 587.

The fact that measurements are given in sales per aversionem does not affect the general rule. Cuny v. Archinard, 5 Mart., N.S., 238; Geiser v. City of New Orleans, 167 La. 347, 119 So. 73; Consolidated Companies, Inc., v. Haas Land Co., 179 La. 19, 153 So. 6.

Whether the measure be correctly stated in the deed or not where specific boundaries are given, the sale is one per aversionem. The designation of the boundaries controls the enumeration of the quantity. LSA-C.C. art. 2495; Barzeale v. Bordelon, 16 La. 333; Prejean v. Giroir, 19 La. 422; Saulet v. Trepagnier, 2 Rob. 357; Zeringue v. Williams, 15 La.Ann. 76; Barrow v. Miller, 16 La.Ann. 114; Surgi v. Shooter, 17 La.Ann. 68; Passera v. City of New Orleans, 167 La. 199, 118 So. 887.

The governing authorities of the City of New Orleans became fully aware of the fact that a serious and irreconcilable conflict existed as to the correct location of Toledano Street as between the plans of Pilie and d’Hemecourt and that this circumstance was causing much' confusion among the owners of property along Toleda-no Street. It appears that on February 27, 1923, the Commission Council of the City of New Orleans adopted Ordinance No. 7299, C.C.S., by which the “plan of D’Hemecourt as confirmed by the survey of Elbert G. Sandoz, Civil Engineer and Surveyor, be and the same is hereby adopted and accepted as indicating conclusively the exact location and measurement of the former Square No. 103, now known as Square No. 472, intended to be sold by the Cities of New Orleans and Baltimore * ifc sfc »

The original Square 103 (now Square 472, Fourth District) like Square 455 is bounded on one side by Toledano Street and is located only three squares away from the property which is the subject matter of the present controversy. While the aforesaid ordinance deals specifically with the fixing of the location and measurements of former Square 103, it has come to acquire a general application and is presently accepted by the leading surveyors as establishing the location of-Toledano Street thrortghout the general area.

It would be most absurd to say that the location of Toledano Street should be fixed in accordance with the d’Hemecourt plan as a boundary of Square No. 472 but that Square 455 and the other squares fronting Toledano Street, which were embraced within the former McDonogh tract, between South Claiborne and Board Streets must be located in accordance with the Pilie plan. The abutting landowners along Toledano Street have undoubtedly improved their property in accordance with d’Heme-court’s location of Toledano Street as was recognized and accepted by Ordinance 7299, C.C.S. d’Hemecourt’s line, as confirmed by Sandoz, has likewise been adopted, accepted, and followed by Sandoz, Gandolfo, Krebs, Stewart, Guy J. Seghers, and other surveyors in making surveys of property fronting Toledano Street. If the Pilie plan were to be applied to the situation the possibility is that this would require practically all boundaries in Square No. 455 and also the front boundaries in the other squares along Toledano Street to be relocated, which, to say the least, would result in utter confusion and bring about chaotic results. The line of Toledano Street would most probably run through, or be so near, many existing buildings as to necessitate their removal or demolition. See Provosty v. Clark, 11 La.App. 147, 119 So. 763, which was a boundary suit in which we discussed an analogous situation.

The Warren Realty Company, Inc., claims that it acquired ownership by reason of its bid of $1,400 for the property at a public sale held by the City of New Orleans. The evidence shows that during the time the disputed property stood in the ownership of Felix H. Kuntz, plaintiff’s immediate vendor, Kuntz unsuccessfully endeavored to have his title approved by a title guaranty company in New Orleans. The title company though Kuntz’s title was suggestive of litigation. Ultimately Kuntz conceived the idea of having the City of New Orleans advertise the property for sale at auction with the expectation that he would become the adjudicatee of whatever rights the City might have and thus clear his title. At the ensuing public offering Kuntz bid $1,300 for the property, but a representative of Warren Realty Company, Inc., was present and entered a last and higher bid for $1,400, which the Commissioner of Public Parks and Buildings of the City of New Orleans refused to accept.

Ordinance 7299, C.C.S., was a formal acknowledgement that Pilie erred in showing the location and boundary of Square 472, and the Commission Council sought to rectify the error by fixing the line of Toledano Street where it should be. This establishment of the true boundary has the legal effect of reverting back to the sale per aversionem made to B. F. and J. Lotspeich in 1859, and the vendees can be said to have taken all of the land between the four bounding streets according to their proper locations. Where one sells a certain quantity of land and afterward fixes the boundaries himself, the purchaser will take all the land between those boundaries. Le Breton v. McDonough, 2 Rob. 461.

The ordinance also is a testimonial that the Commission Council believed that when the cities of New Orleans and Baltimore sold the McDonogh squares in 1859 it was their intention to dispose of all the land in each particular square without regard either to the dimensions shown by Pilie or his locations of the bounding streets. This is important for in determining disputes such as this the court should ascertain, and, if possible, give effect to the intentions of the parties. Administrators of Tulane Educational Fund v. Stair, 148 La. 11, 86 So. 595.

Thus the City of New Orleans had absolutely nothing to offer at the auction sale, and as a corollary Warren Realty Company, Inc., could buy nothing, the sum total of which is that they have no interest to assail plaintiff’s title. By claiming ownership each of said defendants assumed the attitude of a plaintiff in a petitory action and must recover, if at all, upon the strength of their own titles. Baird v. Atlas Oil Co., 146 La. 1091, 84 So. 366.

Our above conclusion renders it unnecessary to discuss the plea of estoppel interposed by Warren Realty Company, Inc., or its plea that there is a non-joinder of parties plaintiff.

The judgment appealed from is affirmed.

Affirmed.


text:
    Thomas MURPHY and Mrs. Merna Labat v. Isaac ROWAN, Jr., and Nola Cabs, Inc.
    No. 20552.
    Court of Appeal of Louisiana. Orleans.
    Jan. 3, 1956.
    Rehearing Denied Feb. 6, 1956.
    Writ of Certiorari Denied March 26, 1956.
    Eugene D. Brierre & Louis Fenner Claiborne, New Orleans, for plaintiff-appellant.
    Henry L. Oulliber, Jr., and Robert J. Pitard, New Orleans, for defendants-ap-pellees.
   REGAN, Judge.

The plaintiffs, Thomas Murphy, owner and operator of a Buick automobile, and his daughter, Mrs. Merna Labat, a guest passenger therein, instituted this suit against the defendants, Isaac Rowan, Jr., ©perator of a taxicab and his insurer, Nola Cabs, Inc., endeavoring to recover the respective sums of $3,505 and $9,690 representing personal and property damages incurred by the plaintiffs as the result of a collision in the intersection of S. Galvez and Erato Streets, in the City of New Orleans, on January 31, 1954, at 11:30 P.M.

The defendants answered and denied ;that Rowan was guilty of any negligence whatsoever and, in the alternative, pleaded the contributory negligence of the plaintiffs.

From a judgment in favor of the defendants dismissing the plaintiffs’ suit only Mrs. Merna Labat, the guest passenger, has prosecuted this appeal.

The facts are relatively simple and are not seriously disputed. Plaintiff, Murphy, was driving in the general direction of Canal Street in the riverside roadway of S. Galvez Street, which is a boulevard, having two roadways divided by a neutral ground ten or fifteen feet in width. His daughter, Mrs. Labat, was the only passenger and she was sleeping on the right front seat. Isaac Rowan, the operator of the taxicab, was driving in Erato Street in the general direction of the river'and particularly towards S. Galvez Street. The traffic moving in the intersection is regulated by stop signs erected on both S. Gal-vez and Erato Streets. At the time that the accident occurred lumber and assorted building materials were stored in the neutral ground of S. Galvez Street to a height of approximately five feet beginning at Erato Street and extending the length of a city block which, it is conceded, effectively obstructed the view of both operators. Rowan asserted that he stopped in obedience to the sign before entering the lakeside or outbound roadway of S. Galvez Street and then drove across both it and the neutral ground' area and when he had moved about five feet into the inbound or riverside roadway of S. Galvez Street the collision' occurred. Murphy testified that he stopped in S. Galvez Street before entering Erato Street and that when he drove to about the center of the intersection he was struck by defendant’s vehicle.

An analysis of the record convinces us that Murphy entered the intersection without stopping in obedience to the sign and he was, therefore, guilty of negligence and plaintiff’s counsel conceded as much in oral argument before this court. Therefore, the only question posed for our consideration is whether the operator of the taxicab was guilty of negligence in driving into the riverside roadway of S. Galvez when his vision thereof was obstructed by materials stored in the neutral ground area of S. Galvez Street.

Defendants contend that Rowan, the operator of the taxicab, had a right to assume that Murphy would obey the stop sign before entering the intersection of S. Galvez and Erato Streets; that Rowan could indulge in this assumption until he saw or should have seen that Murphy had not observed or was not going to observe the stop sign and since Rowan’s vision into S. Galvez Street was effectively obstructed by building material stored in the neutral ground area thereof he was not required to evaluate Murphy’s intentions of obeying the stop sign and was, therefore, free of negligence in'the premises. To substantiate this hypothesis defendants rely on the case of Koob v. Cooperative Cab Co., 1948, 213 La. 903, 35 So.2d 849, 851. We are fully cognizant of thq ratio decidendi of the foregoing case and are convinced that the principles of law enunciated therein have no application herein. In that case the court very carefully pointed out:

“The motorist on the right-of-way street, zvith knowledge of the location of such a stop sign, has a right to assume that any driver approaching the intersection from the less favored street will observe the law and bring his car to a complete stop before entering the intersection, and such motorist can indulge in this assumption until he sees, or should see, that the other car has not observed or is not going to observe, the law’’ (Italics ours.)

Obviously the foregoing statement is not authority for the principle that since a visual obstruction existed the operator of a motor vehicle is thereby granted the privilege of blindly driving into a roadway irrespective of his knowledge of conditions existing therein. The Court was very cautious to point out that a motorist could indulge in “the assumption” until “he sees” or “should see” that the “other car * * is not going to observe, the law.” The decision is predicated on the fact that the motorist could or should exercise his sense of sight and not on his inability to see due to an obstruction.

In our opinion the taxicab driver should have stopped when he reached the neutral ground area of S. Galvez Street and then before proceeding further he should have assured himself that there was no vehicle approaching in the riverside roadway of S. Galvez Street. Surely it requires no citation of authority to substantiate the well established principle of law that when approaching a blind intersection the operator of a motor vehicle, who does not have a clear right of way, must stop and look before attempting to traverse the roadway. Had Rowan exercised the care and prudence commensurate with the existence of this visual obstruction the accident could not have occurred.

Since we find the operators of both vehicles guilty of negligence the defendants must respond in damages to the guest passenger, Mrs. Labat, who was asleep in Murphy’s vehicle when the accident occurred and, therefore, was free of contributory negligence.

The record reveals that the plaintiff suffered two broken ribs as a result of the accident. She was removed to Charity Hospital where her chest was bandaged and she was permitted to return home. Subsequently she consulted Dr. Irvin Cahen on two occasions, who, after having x-rays taken of plaintiff’s chest, made the same diagnosis as Charity Hospital, that is that plaintiff was suffering from two fractured ribs. The record reveals that she remained in bed intermittently for a period of two weeks and was confined to her home for a total period of approximately six weeks. We believe that plaintiff is entitled to recover for pain and suffering and the injuries incurred as a result of this accident the sum of $1,000. During the six week period that plaintiff was confined to her home she was deprived of her weekly wage of $25 or a total of $150 which she is also entitled to recover.

For the reasons assigned the judgment appealed from is annulled, avoided and' reversed and it is now ordered that there be judgment herein in favor of Mrs. Merna Labat and against the defendants, Isaac Rowan, Jr., and Nola Cabs, Inc., in the sum of $1,150 and for all costs.

Reversed.


author: JANVIER, Judge.

text:
    John WASHINGTON v. ATLANTIC & GULF STEVEDORES, Inc. and the Fidelity and Casualty Company of New York.
    No. 20670.
    Court of Appeal of Louisiana. Orleans.
    Jan. 16, 1956.

      Claude F. Kammer, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, New Orleans, for defendant-appellee, A. R. Christovich, New Orleans, trial attorney.
   JANVIER, Judge.

This workmen’s compensation suit is now before us on motion of plaintiff-appellant to remand the matter to the Civil District Court for the Parish of Orleans in order that he may be afforded an opportunity to offer additional evidence tending to show continued disability 'and to offer in particular certain X-ray photographs taken at the Charity Hospital in New Orleans, apparently on November IS, 1955, nineteen months after the accident, which, according to counsel for plaintiff and according to one of the reports of the Charity Hospital, show that at that time one of plaintiff’s ribs showed evidences of an old fracture which had healed.

The wording on this report is as follows:

“No pathology demonstrated by X-rg. Clinically old fx of R8th rib ant. healed.”

As this is translated, apparently correctly by counsel for plaintiff, it means that at that time there was evidence of an old fracture of the eighth anterior rib, which fracture had healed.

Whether plaintiff sustained a fractured rib in the accident from which this suit results was not an issue. As a matter of fact, it was not even alleged that he had sustained such a fracture, and in the answer of defendants it was admitted that he had sustained injuries but liability for further compensation was denied on the ground that all disability which had been caused by the accident had terminated and that any disability which existed and particularly which existed at the time of the trial resulted not from the accidental injury nor from any aggravation of a pre-existing condition, but simply from the pre-existing condition itself. It was conceded that plaintiff had been temporarily disabled.

The District Judge was well convinced that at the time of the trial all of the effects of the accident had disappeared' and that no disability was caused by the preexisting condition from which plaintiff suffered.

In his reasons for judgment the District, Court Judge said:

“The x-rays and medical testimony leave no doubt that at the time of the accident plaintiff had a pre-existing scoliosis and hypertrophic changes with osteoarthritis, which is to be expected in a man 52 years old as part of the aging process. * * * ”

The District Judge further stated that of course aggravation of a pre-existing condition entitles a plaintiff to compensation, but that the medical evidence in this case “overwhelmingly” demonstrated that such aggravation “should have cleared up not later than four or five months” after the accident.

And the District Judge was further of the opinion that the medical evidence, by a substantial preponderance, showed that the disability resulting from the accident had entirely disappeared.

Since the question of whether the plaintiff had sustained a fractured rib was not and is not an issue, no useful purpose would be served by remanding the matter in order to permit the introduction of evidence showing that there had been such a fracture.

The motion to remand is overruled.

Motion overruled.


author: HAMITER, Justice.

text:
    228 La. 1004
    Mr. and Mrs. Joseph A. DIECIDUE v. Robert KILPATRICK et al.
    No. 42546.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    Frank P. Krieger, New Orleans, for defendants-appellants.
    Ernest L. Salatich, New Orleans, for plaintiffs-appellees.
   HAMITER, Justice.

Plaintiffs instituted this suit pursuant to the provisions of LSA-R.S. 47:2228.1 to confirm a tax title to three lots of ground in the City of New Orleans. Made defendant initially was Robert Kilpatrick, the record owner of the property at the time of its adjudication to the State of Louisiana for unpaid taxes. His heirs were later substituted for him when it was learned that he had since died. Also cited subsequently as a defendant was Warren A. Doll, plaintiffs having ascertained that he acquired certain claimed rights in and to the property of one Samuel Cresap who was an adjudicatee at a mortgage foreclosure sale by the Civil Sheriff of the Parish of Orleans.

Doll filed an exception, therein contending that he had been improperly made a party defendant. Answering, he denied plaintiffs’ allegations; and he reconvened for damages allegedly sustained as the result of the suit having been wrongfully brought against him. The curator appointed to represent the other defendants, who were absentees, also filed an answer, generally denying the averments of plaintiffs’ petition.

The trial court overruled the exception, rendered judgment on the merits in favor of the plaintiffs, and dismissed the recon-ventional demand. Defendant Doll appealed from the judgment.

Appellees have moved to dismiss the appeal, urging that since the appellant conceded in the trial court that their title is indefeasible the appeal was frivolously taken. They also assert that the record fails to affirmatively show that the value of the property in dispute is in excess of $2,000, the jurisdictional minimum of this court.

The latter assertion of appellees has merit. The only evidence as to value is that of the plaintiffs themselves. They testified that the property was purchased in 1949 for $1,200 and that they expended the sum of $373.30 to clean and destump the lot and to build a shed on it. There is nothing to show that the performed work enhanced the value of the property any more than the amount expended; nor was there any disclosure that an enhancement otherwise resulted.

It is true that in connection with his reconventional demand the defendant Doll alleged the value of the property to be in excess of $2,000. However, allegations in the answer are deemed to be denied by the plaintiffs. Code of Practice Article 329; Lee v. Perkins, 195 La. 939, 197 So. 607. Therefore, such allegation of appellant cannot be held to be controlling as to the value of the property in the absence of evidence to support it.

In his brief the appellant recites that similar property in the same neighborhood has recently sold for more than $2,000, and also therein he purports to make an offer to purchase the lots from plaintiffs for $2,500 in order “to clinch the matter and bring it to an end”. But these assertions do not form a part of the record and cannot be considered in determining value for jurisdictional purposes.

Since this court does not have jurisdiction of the appeal, we refrain from passing on the contention that it was frivolously taken. That plea should be made in the Court of Appeal having appellate jurisdiction of the case.

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


text:
    228 La. 1008
    Harry KATZ et al. v. KATZ REALTY COMPANY, Inc.
    No. 42078.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      James W. Hopkins, Moise W. Dennery, James J. Grevemberg, New Orleans, for defendants in warranty and appellants.
    Fishman, Reuter, Rosenson & D’Aquin, Leonard H. Rosenson, New Orleans, for plaintiffs-appellees.
   HAMITER, Justice.

The demand of plaintiffs in this action, founded on an express warranty contained in a deed executed by the defendant to them and affecting immovable property known as 2517-19-21 South Broad Street in the City of New Orleans, is for reimbursement of $2,961.01 which they expended in curing alleged defects in such property’s title.

Plaintiffs prevailed in the district court; and from the judgment most of the war-rantors in the chain of title, made parties to the suit through calls in warranty, have appealed.

The record discloses that one William S. Good, Jr., as owner, constructed a large concrete block building bearing the mentioned municipal numbers on land described in a survey of F. Gandolfo, Jr., as Lots 3, 4 and 5 of Square No. 489 in the Fourth District of New Orleans. Subsequently, the land and building were conveyed successively, under usual warranty deeds, to Dr. Lee C. Schlesinger et ah, to Charles Keller, Jr., to Katz Realty Company, Inc., and finally to Harry Katz et al., the plaintiffs herein.

In 1952 a prospective purchaser, who had been conducting negotiations with plaintiffs, caused the property to be surveyed by Guy J. Seghers, a qualified surveyor. This survey did not change the dimensions of the lots; but it moved the entire Square No. 489 about nine inches in a westerly direction toward Eve Street, as the result of which the walls of the building on its Melpomene Street side encroached on adjoining lots a like distance. The Segher survey also disclosed that thereunder, and even under the original Gandolfo survey, the foundations of the building extended beyond the title dimensions of the lots and into lands of four adjoining owners. The encroachments, caused both by the walls and the underground foundations, varied from two inches to two feet.

On the discovery of the described situation plaintiffs’ attorneys gave written notice of it to the above named warrantors in the chain of title. Their letters, among other things, stated:

“In connection with a proposed sale of this property, the proposed purchaser has refused to accept the title unless the ground upon which the encroachments rest be conveyed to him. As a result, we have arranged with the adjacent owners to purchase from them sufficient areas of their property in order to eliminate the encroachments.

% s|s * * *

“Accordingly, as a warrantor of this title, you are hereby placed on notice that in due course, demand upon you for reimbursement of the sums expended and costs, necessary to remove the encroachments will be made, with respect to the subject property.” To the letters there was no response.

Thereafter, plaintiffs purchased the strips of land necessary to correct the encroachments (expending therefor $2,961.-01), and then they sold the entire prop7 erty. Following the sale they instituted this suit to recover the amount so expended which, according to a stipulation of counsel, was less than would have been the cost of the removal of the foundations and walls to an area within the property lines as shown on the Seghers survey. As prayed for judgment was rendered in their favor. And from it the several former owners who were called in warranty are appealing.

In this court appellants do not question the correctness of the trial judge's conclusion that the Seghers survey was proper and is controlling. Apparently they concede the existence of the encroachments, for neither in oral argument nor in brief have they pointed out in what manner, if any, the judge’s finding in that respect was erroneous. Here, appellants complain only “that the Lower Court erred in overruling the exceptions of no right or cause of action filed by each defendant in warranty, in that the relief prayed for by plaintiffs is not actionable. That, in the event that plaintiffs are entitled to damages, the amount awarded by the trial court is greater than the sum recoverable under the laws concerning warranty.”

Under the mentioned exceptions appellants argue: “The primary question to be answered is: Have plaintiffs stated a cause of action? Can plaintiffs, having disposed of the property in question, seek to be reimbursed an amount equal to that paid to purchase certain portions of ground, which ground the title did not purport' to transfer? We believe that the relief granted a purchaser, discovering an encroachment under our articles on warranty, is well defined. The purchaser may ask for a proportionate restitution of price for partial eviction ,under Article 2514, R.C.C.; or ask that the sale be rescinded under Article 2511, R.C.C. * * * The use of Article 2514, R.C.C., seems illogical in the present matter, where an encroachment is the complaint, * * *. The problem calls for some other form of relief. A diminution of price, can in no way correct the encroachment. Therefore, the only relief which was open' to plaintiffs was to have the sale rescinded. But plaintiffs, by their behavior, forever estopped themselves from taking this action by their disposing of the property in question.”

Accordingly, to be determined primarily herein is -whether plaintiffs,-on the discovery of the’ encroachments, were limited to an action for a rescission of the sale.

“The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.” LSA-Civil Code Article 2475.
“The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibi-tory vices.” LSA-Civil Code Article 2476.
“On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.” LSA-Civil Code Article 1926.

These codal provisions appear to afford to plaintiffs the right either to obtain a rescission of the sale or to recover damages because of their vendor’s having failed to perform. And there are cases in the jurisprudence of this state which tend to support that conclusion.

In Pepper v. Dunlap, 5 La.Ann. 200 and Littleton v. Pratt, Boone & Ivy, 10 La.Ann. 487, this court held that where a vendee purchases from a third person a better title than that derived from his vendor, thereby curing the defect initially existing, he is entitled to a credit for the price paid for the acquired outstanding title. Clearly there was a defect in the title furnished to the instant plaintiffs, the building which they bought having encroached on lots owned by third persons.

A case identical to the present one, except that in it the purchaser employed a different means to cure the defect, is Schill v. Churchill, 11 La.App. 181, 123 So. 139 (certiorari denied by this court). There the vendee, on discovering the encroachment, had the- offending improvements physically removed and called on his vendor in warranty to reimburse him for the expense of the removal. The vendor was held liable for these costs, the court in reaching its decision having relied on certain language 'in Jacobs v. Freyhan, 156 La. 585, 100 So. 726 and Louisiana State Rice Milling Co., Inc., v. Kaplan, 168 La. 50, 121 So. 188, to the effect that sales of land and improvements are deemed to be sales of the ground on which the improvements rest and that a prospective purchaser could not be forced to perform an agreement to purchase where encroachments on property of third persons were found to exist.

In Veters v. Walsh, 14 La.App. 323, 124 So. 687, 688, there was presented the question of whether or not a seller of immova-bles was liable for the commission of the real estate agent where the prospective purchaser refused to carry out the agreement to purchase because a part of the improvements encroached on adjoining property. In holding that the commission was due and owing the court reasoned that although the encroachment existed the contract of sale was nevertheless enforceable by the prospective purchaser. It said: “ * * * The fact that it would have been expensive for defendant to eliminate the encroachments would not release her from the contract, if the prospective purchaser had seen fit to hold her to specific performance of it. * * * ”

If a vendee can remove an encroachment and recover the removal cost from his vendor (as in the Schill case) surely these plaintiffs were entitled to purchase the land needed for remedying the defects and to demand reimbursement of the funds expended, particularly since the total price paid was less than would have been removal costs and also since the war-rantors in their chain of title completely ignored the written notices of the encroachments which plaintiffs gave.

As to the amount of damages recoverable herein appellants contend that plaintiffs are entitled (if to anything) only to expenses of remedying the wall encroachment on one side of the building, and that the protruding underground footings and foundations cannot be taken into consideration. They argue that the walls .of this building “presumably” were party walls such as may, under LSA-Civil Code Article 675, extend as much as ten and one-half inches beyond the property lines; and that, therefore, the foundation encroachments on adjoining lots were contemplated and proper. But this defense was not urged in the pleadings in the trial court. Consequently, and also since it involves questions of fact which would require the taking of much additional testimony, we cannot pass upon it.

Appellants further suggest that the proper method for fixing damages herein is that prescribed by LSA-Civil Code Article'2514 which recites: “If in case of eviction from a part of the thing, the sale is not canceled, the value of the part from which he is evicted, is to be reimbursed to the buyer according to its estimation, proportionately to the total price of sale.” The suggestion appears to conflict with appellants’ position under the aforediscussed exceptions, they having argued thereunder (the argument is above quoted) that the “ * * * use of Article 2514, R.C.C., seems illogical in the present matter * * Nevertheless it is without merit, the codal article being obviously inapplicable to the factual situation existing here. No provision is to be found in that article whereby these plaintiffs could obtain reimbursement of the cost of removing the encroaching walls and foundations and of rebuilding them within the limits of the lots. If this work be not performed then plaintiffs would be deprived of the use of the building in its entirety, and there would result more than a partial eviction.

For the reasons assigned the judgment appealed from is affirmed.


author: SIMON, Justice.

text:
    228 La. 1018
    Mrs. Susan HUBER et al., v. ED TAUSSIG, Inc., et al.
    No. 42391.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Jan. 16, 1956.
    Oliver P. Stockwell, Lake Charles, Michel Provosty, ¡New Orleans, Plauché & Stockwell, Lake Charles, Provosty & Pro-vosty, New Orleans, of counsel, for defendants-appellants.
    Robt. B. Lawes, Lake Charles, G. T. Owen, Jr., Baton Rouge, Lawes, Cava-naugh, Hickman & Brame, Lake Charles, Borron, Owen, Borron & Delahaye, New Orleans, of counsel, for plaintiffs-appellees.
   SIMON, Justice.

Plaintiffs, Mrs. Susan Huber, Thomas L. Huber, Jr., and Quality Oil Co., Inc., instituted this suit against Ed Taussig and Ed Taussig, Inc., seeking primarily a judgment cancelling and terminating a contract of commercial lease dated June 5, 1946, and to recover damages in favor of Quality Oil Co., Inc., (hereinafter referred to as Quality) resulting from an alleged breach of said lease in the sum of $830 per month beginning November 1, 1950, and ending on the date of final judgment cancelling said lease. In the alternative, should said lease not be cancelled, plaintiffs seek judgment condemning defendant to pay to Quality the sum of $830 per month beginning November 1, 1950 and ending on the date of the final termination of said lease in accordance with its terms and provisions.

Exceptions of no right and no cause of action were filed. Judgment was rendered maintaining said exception and dismissing the suit, for the written reason assigned by the trial judge that “under the provisions of Paragraph 9 of the exclusive purchase agreement Taussig could arbitrarily refuse to accept any other petroleum products from Quality Oil Company in the event its jobber’s contract with Pan-American Petroleum Corporation should be cancelled”.

Plaintiffs appealed from said judgment, and in a reversal thereof we said that defendants did not have the right to arbitrarily refuse to accept another product but that such refusal must depend upon a bona fide exercise of judgment and not on defendant’s mere pleasure or caprice.

We further said:

“Defendant may have a good and valid reason for considering the products of Skelly Oil Company unsatisfactory, and he may be fully justified in his refusal to accept these products for sale. If so, his refusal to accept these products would not constitute a breach of the purchase agreement which would entitle plaintiffs to a cancellation of the lease contract. This is a question of fact, however, which will have to be determined on the trial of this case on its merits.”

Accordingly, we remanded the matter to the district court for further proceedings consistent with the views expressed by us.

At a pretrial conference the trial court ruled that plaintiffs would not be permitted to introduce evidence of legal fraud but would be confined to proof warranting the cancellation of the contracts, of their dependency one on the other, of their alleged breach, and of alleged damages resulting from said breach.

The chronological events culminating in this suit are as follows:

On June 5, 1946, Mrs. Susan Huber and Thomas L. Huber, Jr., leased to Ed Taussig property located in Lake Charles, for the purpose of operating an automobile dealership and repair and service station, for a period of six years, beginning November 1, 1946, at a monthly rental of $1,400 for the first five years and $800 per month for the remaining period. It also contained a renewal option for an additional four-year period at a monthly rental of $800. It is also observed that from the year 1926 to 1941 plaintiffs, as owners, used said property to conduct the business of selling and servicing cars under an exclusive Ford franchise. In 1941 defendant acquired the Ford Company franchise from plaintiffs and leased said property from the Lake Charles Investment Company, Inc., then owned by plaintiffs, at which time defendant had also signed an agreement with Quality, owned by plaintiffs, to buy gasoline, motor oils and related products distributed by Quality under an exclusive sales franchise with Pan-American Petroleum Company (hereinafter referred to as Pan-Am).

On June 25, 1946, defendant entered into an “exclusive purchase agreement” with Quality as part of the consideration for the lease execution by them on June 5, 1946, to purchase exclusively from Quality all gasoline, oil and other petroleum products retailed on the leased premises. Paragraph 9 of this “exclusive purchase agreement” provides:

“It is recognized that the Quality Oil Company has a jobber’s contract with the Pan-Am Petroleum Company and that should the Pan-Am Petroleum Company cancel the contract with the Quality Oil Company and the Quality Oil Company does not secure a jobber’s contract from some major oil company satisfactory to Taussig, in order to carry out the terms of this exclusive sales agreement, then the agreement shall terminate at such time, at the option of Taussig.”

Subsequently the legal status of the parties changed both incorporating their respective businesses, which, however, did not affect the lease and purchase agreements heretofore entered into by them.

It appears that though Quality enjoyed an exclusive franchise from Pan-Am for many years prior to the execution of the contracts herein involved, their business relationship lacked harmony, being threatened by personality clashes between T. L. Huber, Jr., and the officials of Pan-Am to such an extent that in 1946 T. L. Huber, Jr., ceased active participation in the affairs of Quality to avoid cancellation by Pan-Am of that exclusive franchise. Albeit, in the summer of 1950, T. L. Huber, Jr., decided to resume active participation in Quality; and, anticipating that his re-entry would incur repercussions on the part of Pan-Am, he proceeded to obtain a franchise or'jobber’s agreement with some other oil company which would be satisfactory to Taussig. It is undisputed that Huber, Jr., contacted Cities Service Company, Magnolia Petroleum Company, Texas Company and Continental Oil Company. Apparently none of these oil companies agreed to grant to Quality, acting through Huber, Jr., an exclusive sales franchise. The record further discloses that Taussig was acutely aware of the dissention between Pan-Am and Huber, Jr. His apprehension of the ever-present threat of cancellation by Pan-Am of its exclusive franchise to Quality unquestionably accounts for the inclusion of the conditional option clause contained in paragraph 9 of the purchase agreement of June 25, 1946.

It is significant that a few months prior to the cancellation of Pan-Am’s exclusive franchise, Huber, Jr., undoubtedly anticipating the loss of this franchise, inquired of Taussig whether Cities Service oil products would be satisfactory. Taussig then advised Huber that in view of the extensive operation and large refinery of Cities Service in the Lake Charles area, the number of its employees residing therein, and the fact that the quality of its products was well known and generally accepted, this major oil company would be acceptable and satisfactory to him.

On September 20, 1950, Pan-Am notified Quality by letter that its exclusive franchise was cancelled effective October 31, 1950. On the next day, September 21, 1950, Quality, acting through Huber, Jr., consummated a written contract to sell exclusively the products of Skelly Oil Company in the Lake Charles area effective November 1, 1950.

The record discloses that during October, 1950, Huber, Jr., and Mr. Fritts, a representative of Skelly Oil Company, called on Taussig to inform him that effective November 1, 1950, Quality would deliver Skelly Oil products instead of Pan-Am products. Taussig, having prior knowledge of Quality’s contract with Skelly Oil and having made a full investigation of the status of Skelly Oil Company, informed Fritts and Huber, Jr., that his investigation disclosed that Skelly Oil Company had no oil operations and no retail outlets in the area, could give no reciprocal business, and was as a stranger to the retail oil business in the Lake Charles area; and that he could not accept Skelly’s products as a substitute for the well-known and publicly accepted Pan-Am products. Fritts, in effect confirming the results of Taussig’s investigation, readily admitted that Skelly Oil had never had any operations in this area; that it did not contemplate any type of production or refining operation in this vicinity, and that it had not conducted any promotional sales or advertising program in the Lake Charles area.

Shortly thereafter, by letter dated October 18, 1950, Quality formally notified Taussig of its jobber’s contract with Skelly Oil Company, effective November 1, 1950, notwithstanding Taussig’s oral refusal as above outlined. Nonetheless, on October 21, 1950, Taussig wrote Quality notifying it that he would continue selling Pan-Am products and reiterated his reasons for rejecting Skelly Oil products; that he would exercise the option granted him under paragraph 9 of the purchase agreement and thus terminate it effective October 31, 1950.

After a trial on the merits, the district court rendered judgment in favor of plaintiffs, cancelling and terminating the contract of lease, restoring to plaintiffs the possession of said leased premises, together with all property included in or covered therein. Judgment was further rendered dismissing the respective demands of plaintiffs and defendants, without prejudice.

Thus, under the facts and circumstances herein presented, the crux of this appeal is whether defendants were legally justified, under the provisions of paragraph 9 of the purchase agreement, in refusing to accept the Skelly Oil Company petroleum products offered by Quality, effective November 1, 1950.

Obviously by paragraph 9 of the purchase agreement the parties intended mutual protection under the continuing arrangement and that every effort would be made in .good faith to agree upon a substitute should the existing operative franchise be cancelled. When this matter was originally before us we observed that “the clause itself stated that the purpose for the provision for a substitute was ‘to carry out the terms of this exclusive sales agreement’ ”. It did not intend to afford the defendant the option of arbitrarily refusing any substitute by merely declaring dissatisfaction. We held that the defendant was under a duty of executing his obligation in good faith and according to an objective standard and that his refusal to accept the products of Skelly Oil Company in lieu of the products of Pan-Am had to depend upon a bona fide exercise of judgment and not upon mere pleasure or caprice. We further recognized the fact that defendant may have had a good and valid reason for considering Skelly Oil Company products unsatisfactory to him, and thus be fully justified in his rejection of said company. Such a refusal would not constitute • a breach of the purchase agreement which would entitle plaintiffs to a cancellation of the lease contract. i

Generally, what shall constitute compliance with a contract wherein the subject matter thereof shall be satisfactory to one of the parties presents two distinct but inter-related questions — one, whether the party upon whom is placed the, obligation of accepting acts in good faith, and the other whether he acts reasonably. A mere declaration of one’s dissatisfaction is not in itself conclusive. He has the right to fairly and candidly investigate and consider the matter and reach a genuine conclusion. His action must not be arbitrary or capricious. In exercising this right it follows that the correctness of his decision and the adequacy of the grounds therefor are subject to judicial determination.

It appears that the Skelly Oil Company, in comparison with other oil companies of the United States, is a “major” oil company. Nevertheless the record clearly establishes that prior to October 31, 1950 the products of Skelly Oil Company were unknown to the general trade in the Lake Charles area, the area pointedly affected by the contract; that there were no retail outlets for Skelly products in the Lake Charles area which could have afforded Taussig the opportunity, to review and judge the measure of .the public’s reception of the Skelly petroleum products; that no advertising program or promotional sales program had been undertaken or was even contemplated by Skelly in that area. These factors had to be marshalled, analyzed and weighed by Taussig during the short period immediately prior to October 31, T950>. without benefit of opportunity to test their merits under subsequent light and circumstances. His decision as to his satisfaction was of necessity based on the then available and prevailing facts and no other. Under the dictates of business experience, as aforesaid, Taussig conducted a personal investigation of the factors above detailed in an effort to determine the desirability of handling Skelly Oil products. The adverse results of his investigation, the correctness of which was in turn conceded by Huber and Fritts, predicated his decision and served as the basis of his expressed dissatisfaction and rejection of Skelly Oil products as a substitute for the Pan-Am products.

The record reveals that since November 1, 1950, as many as 12 service stations are successfully handling Skelly petroleum products exclusively. However, the present-day reputation of Skelly Oil Company in regard to sales and distribution of its products and the activities engaged in by it in that area after November 1, 1950, are clearly immaterial and irrelevant. They can have no bearing on the decision which had to be made by Taussig on or before October 31, 1950, he being called upon to rely only on the then known and prevailing factors.

We feel that the rejection by Taus-sig of Skelly Oil products offered him by plaintiffs was not arbitrary, unreasonable, or without good and valid reasons. Hence, his conduct, being legally justifiable, does not constitute a breach of the purchase agreement which would authorize the cancellation of the lease contract.

In matters involving purely issues of fact, we recognize that the judgment of a lower court should be affirmed unless there be manifest error in the analysis of the facts and the conclusions drawn therefrom. The learned trial judge in his written reasons for judgment has ably analyzed the facts from a voluminous record, which analysis has been of material aid to us. We are constrained, however, to hold that the conclusions reached by him are at variance with and are not warranted by the facts.

Accordingly, for the reasons assigned, it is ordered, adjudged and decreed that the judgment of the district court be, and the •same is hereby reversed, annulled and set .aside and that there be judgment dismissing plaintiff’s suit at their cost.

      . Huber v. Taussig, 224 La. 453, 69 So.2d 919, 921.