author: HAMITER,- Justice.

text:
    229 La. 727
    Succession of Mrs. Julia Bonnabel ROLLING.
    No. 42250.
    Supreme Court of Louisiana.
    March 26, 1956.
    Sidney G. Roos, New Orleans, for appellants. .
    McDonald & Buchler, Metairie, Patrick E. Carr, Frank V. Zacearía, New Orleans, for appellees.
   HAMITER,- Justice.

Mrs. Julia Bonnabel. Rolling, widow of Charles W. Rolling, died at her domicile in Metairie, Jefferson Parish, on September 13, 1946. Surviving were a daughter, Miss Bonnie W. Rolling, and four sons, Erie W., Laurance, Alfred and Julian Emanuel Rolling.

Shortly after her death an olographic last will and testament made'by'the decedent on May 4, 1946 was located, following a search by a commissioned Notary Public; in her safety deposit box in the Whitney National Bank of New Orleans. On the petition of all of the children the court probated it and ordered the taking of an inventory of decedent’s estate.

Some months later, while the inventory was being made, Miss Bonnie W. Rolling, unexpectedly discovered among the effects of the decedent in the premises where she resided another olographic will and an attached codicil, these having been dated June 14, 1941 and July .29, 1941, respectively. They, on the petition of the daughter, were also probated.

On October 28, 1949 Miss Bonnie W. Rolling, ' individually and as testamentary executrix, petitioned the district court, pursuant to the Uniform Declaratory Judgments Act, LSA-R.S. 13:4231 et seq., to have it “interpret and' determine the true and correct legal intent and effect of the provisions and dispositions contained in' said documents” (the probated two wills and codicil). The court dismissed the petition on exceptions of, no right and no cause of action and a plea pf prematurity filed by decedent’s sons.

On an appeal this court reversed and set aside that decision, overruled the exceptions and plea, and remanded the cause to be proceeded with according to law. See 224 La. 23, 68 So.2d 744.

On the remand the district court tried the declaratory judgment cause on its merits. Subsequently, it ruled: “The Court believes, and so holds, that the testatrix, by the will dated May 4th, 1946, did not intend to revoke the will dated June 14th, 1941 and the codicil dated July 29th, 1941, and further, that the testatrix intended to and did make the following dispositions, to-wit:” (Here recognition is given to seven dispositions from the two wills which, considered in their entirety, appear to afford to the daughter a, decided- advantage over her brothers.) From the judgment the four sons are presently appealing.

In the will of June 14, 1941 the decedent first described herself as- “Mrs. Charles Rolling, nee Julia Bonnabel, of the Parish of Jefferson, State of Louisiana”, and she then made the following bequests: 1. To her husband the usufruct of $10,000 in bonds (no specific ones named) and to her four sons equally the naked ownership thereof. 2. To her daughter certain particularly described real estate (apparently her home) in Brockenbrough Court, Metai-rie Ridge, Jefferson Parish, and “personal effects and belongings including furniture; jewelry, household effects and all other effects” in her home, all of these having been bequeathed as an extra portion and not subject to collation. 3. To her daughter one-half of the double tomb in Metairie Cemetery and to the sons the other half. 4. To the sons, to be shared and shared alike, her real estate located in Metairie-ville, Jefferson Parish. 5. To her daughter “$10,000 in bonds; the remainder of my stock and .bonds to be equally divided between my four sons.” In conclusion, the testatrix named her daughter and John Rau as executors of her estate.

In the codicil of July 29, 1941 she merely gave instructions concerning payment of the usufruct bequeathed to her husband and designated her daughter trustee for the share left to one of the sons (evidently a minor then).

Following the death of her husband Mrs. Rolling made the second will involved herein, of date May 4, 1946, which (with the numerous mispelled words corrected) recited :

“State of Louisiana
Parish of Jefferson
May 4-1946
“I, Mrs. Chas. W. Rolling, nee Julia Bonnabel of the Parish of¡ Jefferson, State of Louisiana do make and constitute this my last will and testament. I will and bequeath to my daughter Bonnie W. Rolling all my personal effects and belongings including furniture jewelry household effects and all other effects in our home.
“I will and bequeath to my daughter Bonnie W. Rolling one half of my double tomb in Metairie Cemetery, the half in which her father is buried the other half I leave to my four sons Alfred, Erie, Laurance and Julian Emanuel, I will and bequeath to my daughter Bonnie W. Rolling my stock in Swift and Company and my stock in Atlas Corporation, I will and bequeath to my four sons Alfred, Erie, Laurance and Julian Emanuel
. “The remainder of my estate consisting of stock, Bonds and real estate, to-share and share alike. I hereby appoint my daughter Bonnie W. Rolling and Rev. Felix Miller .as executors of my estate, or either of -them, .should any one of them be unable or unwilling-to act, the said executors-or either of them to have full seizen of my estate- and to serve without bond.,
“Mrs. Chas. W. Rolling
nee Julia Bonnabel”

It .is the contention of appellants (the four sons) that the document of May 4, 1946 constituted decedent’s last will and testament, and that by it she tacitly revoked the prior will (together with the attached codicil) in its entirety.

On the other hand appellee, the daughter, urges (as the trial court held) that the posterior document effected oniy a particular revocation of specific dispositions of the prior one; and that the provisions of both wills, except where conflicting, must be carried out. In their brief her counsel state: “ * * * In her will of 1946, she repeated, two particular legacies given to her daughter in her 1941 will and disposed of the $10,000.00 in bonds previously left to, her husband, and gave the jewelry, house-, hold effects, and so forth, to her daughter,, but- not as an extra portion as she did in the 1941 will, thereby making a change of this particular legacy.” ,

“The revocation of testaments by- the' act of the testator is express or tacit, gen- - eral or particular.

******

“It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will,

******

“It is particular when it falls on some of the dispositions only, without touching1 the rest.” LSA-Civil Code Article 1691.

“Posterior testaments, which do not, in an express manner, revoke the prior ones, annul in the latter only such ©f the disposi- ’ tions therein contained as are incompatible with the new ones, or contrary to them, or entirely different.” LSA-Civil Code Article 1693.

“When a person had ordered two things, which are contradictory, that which is last written is presumed to be the will of the testator, in which he has persevered, and a derogation to what has before been written to the contrary.” LSA-Civil Code Article 1723.

“A subsequent will, showing by its whole tenor that it was intended to contain all the testamentary dispositions of the deceased, revokes a prior will, in so far as it contains dispositions incompatible with those contained in the will last made.” Succession of. Bobb, 42 La.Ann. 40, 7 So. 60. See also Succession of Pizzati, 141 La. 645, 75 So. 498 aqd Succession of Ryan, 228 La. 447, 82 So.2d 759 (on rehearing).

Viewing the documents presently under consideration in the light of the above announced principles we find ’that the one dated May 4, 194-6 disposed of the entire estate of decedent and contained dispositions which for the most part were incompatible with those previously made.;. ■ and we therefore conclude that-it was intended as her last and- only will and testament.

Thus, in the posterior. instrument the testatrix bequeathed' to the daughter her personal effects without reciting that they were to be an extra portion as she had stated in the former one. Again, the testatrix initially made particular bequests of all of the real estate that she owned (two separate parcels, as revealed by the inventory) and of certain bonds, and she directed that,the remainder of her stock and bonds were to be equally divided among her four sons; whereas, subsequently, she made no particular bequests of her mentioned real estate arid bonds but, on the contrary, included them in a residual clause reciting that “The remainder of my estate consisting of stock, bonds, and real estate, to share and share alike.” Also, incompatibility is noticed between the provisions of the two instruments respecting the appointment of executors, John Rau formerly having been naméd along with Miss Bonnie W. Rolling, and Reverend Felix Miller later having been selected to so serve.

Moreover, had the testatrix not intended the- document of May 4, 1946 to be her last and only will it seems that she would have omitted therefrom the’ description of herself and the bequest respecting the tomb in Metairie Cemetery, both of which were substantially identical with those contained in the first document. Particularly appropriate in this connection is the following-observation contained in Succession of Piz-zati, supra [141 La. 645, 75 So. 504]: “* ' * each of the wills carries a complete disposi-: tion of the entire estate, and contains re-citáis which would have been entirely'superfluous in a will intended to be merely additional, supplementary to, or designed to be read in connection with, another, and not to stand indeperidently by itself as the sole and only will. We refer to the clause wherein the testator .gives information about himself.”

Additionally, we are impressed by the fact that this testatrix had amended her first will by a codicil. .She, therefore, was apparently aware of that method of chang-. ing particular portions of a testament without affecting the remainder of the bequests.,, However, in 1946, rather than “amending” by a codicil as she had formerly done, the testatrix made a new will declaring that “I * * * do make and constitute this my last will and testament.” Having said this she then proceeded to dispose of her whole es-. tate, through bequests entirely different from those previously made, thereby indicating that she intended to and did tacitly revoke the prior testament.

This brings us to the task of interpreting the 1946 instrument, in the performance of which we must principally endeavor to ascertain the intention of the testatrix. LSA-Civil Code Article 1712; Succession of Pizzati, supra; Succession of Homan, 202 La. 591, 12 So.2d 649; Succession of Price, 202 La. 842, 13 So.2d 240; Succession of Earhart, 220 La. 817, 57 So.2d 695; Succession of Rougon, 223 La. 103, 65 So.2d 104.

After considering the will in its entirety, giving effect to every word therein contained, we are convinced that the testatrix thereby attemped to and did make an almost even distribution of her estate among her five children, she preferring only slightly the daughter who was, named executrix and to whom she bequeathed her personal effects (but not without their value having to be collated).

Particular bequests in the 1946 testament (in addition to the one respecting personal effects) were: to the daughter one-half of the Metairie Cemetery double tomb and the stock in Swift and Company (valued in the inventory at $3,300) ; and to the four sons the other one-half 1 of the tomb and the stock in Atlas Corporation (valued at $4,-875). Under the residuary clause of the will the testatrix left the remainder of her estate, consisting of stocks, bonds and real estate, to be shared and shared alike, she obviously intending that such residue was to be equally divided among the five children whom she had previously and specifically named.

, Of course, we are aware that the testatrix placed no period or other punctuation mark between the bequest- of the Atlas Corporation stock to her four sons and the residual bequest. However; as is evident from an' inspection of the will itself, she clearly intended that those two bequests should be separate from and independent of each other. The first word of the residual bequest is indented and commences with a capital “T”. An examination of the remainder of the testament, and also of the former will and codicil, shows that the capital “T” was used elsewhere only when the testatrix began a new sentence. And consistently throughout the wills and codicil she employed a typically lower case “t” when it was the first letter of a word within, and which did not commence, a sentence.

For the reasons assigned the judgment appealed from is reversed and set aside and it • is now ordered, adjudged and decreed that the instrument of May 4, 1946 is the last and only will of decedent, Mrs. Julia Bonnabel Rolling, it having tacitly revoked her prior testament and codicil. It is further decreed that therein the testatrix intended to and did make the following dispositions.

1. To her daughter, Miss Bonnie W. Rolling, all of her personal effects and belongings, including those in her home; one-half of her double tomb in Metairie Cemetery; and her stock in Swift and Company.
2. To her four sons, Alfred, Erie, Laurance and Julian Emanuel Rolling, the other one-half of her double tomb and her stock in Atlas Corporation.
3.-. To her above named daughter and four sons, to be shared and shared alike, the remainder of her estate.

All costs of this declaratory judgment proceeding are to be paid from funds of decedent's estate.


source: Caselaw Access Project

author: McCALEB., Justice..

license: Public Domain

text:
    229 La. 739
    Mrs. Darion Rita SERPAS v. Merlin Jerome LEE.
    No. 42287.
    Supreme Court of Louisiana.
    March 26, 1956.
    John T. Cooper, New Orleans, for appellant.
    Sidney de Armas, New Orleans, tor plaintiff-appellee.
   McCALEB., Justice..

Neither party to this appeal appeared when the case was called for oral argument. However, the attorney who had represented defendant-appellant filed a motion’ to withdraw from the case and another attorney was substituted as.counsel,of record under an order of this Court. The latt.er simul-, taneously filed a motion to dismiss thei .appeal with prejudice.

Since appellee has not answered the appeal and did not appear when the case was submitted for decision, the motion- to dismiss will be granted.

. The appeal.is dismissed.

      . Under Section 2 of Rulo VIII of this Court, an appeal may only be summarily dismissed where there has been .a joint motion filed by all interested parties, or their attorneys. .


author: McCALEB, Justice.

text:
    229 La. 740
    Laura Evelyn Brown GOINS v. Stanley W. GATES et al.
    No. 42786.
    Supreme Court of Louisiana.
    March 26, 1956.

      C. W. Berry, Jr., Oakdale, for appellant.
    Fusilier & Vidrine, Ville Platte, for plaintiff-appellee.
   McCALEB, Justice.

Appellee instituted this suit for recognition of an undivided one-fourth interest in a 161-acre tract of land situated in Evangeline Parish. She also demanded that an outstanding mineral lease granted by appellant be cancelled and that he account for the rents and revenues of the land and for timber alleged to have been cut or damaged.

After a trial, appellee was decreed to be the owner of an' undivided one-fourth interest in the property but all of her other claims were dismissed. In due course, appellant prosecuted this appeal, which ap-pellee now moves to dismiss on the ground that the amount in controversy • is insufficient to confer jurisdiction upon this Court.

The motion is well taken. Our appellate jurisdiction being invoked solely on the ground that the value of the things demanded exceeded $2,000, it was essential that it be clearly shown that such is the case. Martin v. Carroll, 220 La. 481, 56 So.2d 843 and Castleberry v. Ethridge, 223 La. 466, 65 So.2d 138. The record does not exhibit, with certainty, that this jurisdictional requirement has been met.

Appellant’s contention that sufficient evidence has been adduced to establish that the claimed one-fourth interest in the land exceeds $2,000 is not sustained by the record. The "instruments on which he depends consist of deeds transferring various undivided interests in either the land or the mineral rights and include a mineral lease executed in 1953 for .a bonus of $500, plus delay rentals of $25 an acre. The transfers of the undivided interests do not make manifest the value of the land with any degree of. definiteness and, in the absence of evidence that the delay rentals under the lease have been paid for at least two years or that plaintiff’s interest in the mineral rights are otherwise valued at a specific sum, .this court will not entertain jurisdiction for, as above pointed out, the record must affirmatively exhibit that the amount in controversy exceeds $2,000.

Nor does appellee’s claim for an accounting for rents and revenues and for timber alleged to be cut and damaged furnish any basis for the establishment of the amount in controversy. We have but recently decided, in the case of Mrs. Mary L. Schneider Winsberg v. Winsberg, La., 85 So.2d 31, that an action for an accounting is not primarily a monetary demand but, rather, the assertion of a justiciable right which may or may riot become the subject of a monied judgment. Therefore, the matter of appellate jurisdiction of this •court can only attach in cases wherein an accounting has been ordered and judgment has been entered for an amount in excess of $2,000. Since the trial judge did not find any sum due by appellant to appellee, there is no amount now in dispute, other than the value of the plaintiff’s interest in the property, by which the appellate jurisdiction of this court may be gauged.

Appellant has filed a sworn statement in this Court that the property is worth between $25 and $30 per acre. This affidavit will not be considered. See Louisiana Board of Pharmacy v. Smith, 221 La. 1026, 61 So.2d 513; Succession of Wesley, 222 La. 411, 62 So.2d 625; Sexton v. Waggoner, 222 La. 680, 63 So.2d 423 and Duplantis v. Locascio, 223 La. 11, 64 So.2d 624.

It is therefore ordered that the appeal be transferred to the Court of Appeal, First Circuit, provided the record is filed in that court within 30 days from the date’ of the finality of this decree; otherwise-, the appeal shall' be dismissed. The costs incurred in this court are to be paid by 'appellant.


author: HAMITER, Justice.

text:
    229 La. 745
    STATE of Louisiana v. Roy PELTIER.
    No. 42655.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      J. Minos Simon, Lafayette, for defendant.
    Fred: S. LeBlanc, Atty. Gen., M. E. Culli-gán, Asst. Atty. Gen., L. O. Pecot, Dist. Atty., Franklin, Knowles M.‘ Tucker, Asst. Dist. Atty., New Iberia, Nathan A. Levy, Asst. Dist. Atty., Franklin, for appellee.
   HAMITER, Justice.

The defendant, Roy Peltier, is appealing from his conviction and sentence bn the charge that he did “unlawfully conceal, possess and have under his control a narcotic drug, to-wit: Marijuana, as defined by Louisiana Revised Statutes 40:961 *

During the examination of the prospective jurors and in the course of the trial the defendant reserved 69 bills of exceptions, many of which involve related complaints. Those so related will be discussed hereinafter in groups.

The complaint made in the first group pertains to the court’s refusal to permit the answering of a question propounded by defense counsel to the various prospective jurors. They were asked: If the marijuana allegedly possessed by defendant consisted of a minute amount of gleanings mixed with other things commonly found in a man’s pocket, and if the evidence demonstrates that the only way a person could have knowledge that such gleanings were marijuana was by the use of a microscope and by a chemical analysis, and if that evidence raises a doubt in your mind as to whether or not the defendant knew he had the gleanings, would you have any prejudice or bias against, or would there be anything that would keep you from, returning a verdict of not guilty?

Our decision in State v. Morris, 222 La. 480, 62 So.2d 649 and State v. Washington, 225 La. 1021, 74 So.2d 200, appear to support the trial court’s ruling on the question which clearly purposed to have each prospective juror indicate in advance what his conclusion would be under the described- factual situation.

In the Morris case [222 La. 480, 62 So.2d 650], wherein the defendant was charged with possessing narcotics as here, we said: ji * * * Thus it may be seen that the extent of counsel’s right to examine jurors on their voir dire is left in the sound discretion of the trial judge; and it is the settled jurisprudence of this Court that questions which have for their evident purpose to have jurors indicate in advance.what their decision will be under a certain state of facts are not pertinent, State v. Henry, 197 La. 999, 3 So.2d 104, * * *.”

In the Washington case [225 La. 1021, 74 So.2d 201], which also involved the -alleged possession of narcotics, defense counsel asked the prospective jurors if they would be unduly inflamed by the visual observation of the drugs that might be offered in evidence. The trial judge informed counsel that this line of inquiry was objectionable and would not be permitted. Thereupon a bill' was reserved. On the appeal we observed: “The judge was right. It was improper for counsel to interrogate the prospective jurors concerning their reactions as to evidence which might be received at the trial. * * * Article 357 of the Code of Criminal Procedure (now LSA-R.S. 15 :- 357) states that the voir dire examination of jurors is designed to ascertain their qualifications to try the case and that ‘the examination shall be limited to that- purpose.’ The range of the inquiry is within the sound ■discretion of the trial jlidge.- * * * ”

State v. Page, 173 La. 279, 136 So. 609 and State v. Guin, 212 La. 475, 32 So.2d 895, relied on by defense counsel, are not applicable. In each of those cases the questions propounded were clearly for the purpose of ■determining whether the prospective jurors were prejudiced for or against the.defendant personally as a member of a particular ■class.

Inappropriate also are the cited excerpts from State v. Henry, 196 La. 217, 198 So. 910, 918. In that case the defense attorney was prevented from asking, prospective jurors whether they had any prejudice against 'bringing in a qualified verdict if they found the defendant guilty. This court, in concluding that the inquiry was proper and that reversible error had been committed, pointed out specifically that in trials for murder (as in the Henry case) the question of what form of punishment shall be inflicted (death or imprisonment) is peculiarily within the “absolute discretion” of the jury. No question of that kind is presented here.

Numerous bills of exceptions were likewise reserved to the sustaining of the state’s objections to two other questions propounded to prospective jurors in which defense counsel sought to describe in some detail three asserted elements of the crime charged and asked: (1) “* * * If the Court were to tell you that the law provides that before you can return a verdict of guilty the State of Louisiana must prove every one of these three elements beyond a reasonable doubt before you can return a verdict of guilty, I ask you first, will you carry out and apply that law to the facts of this case ?” (2) “ * * * If the Court were to tell you that the law provides that before you can return a verdict of guilty the State of Louisiana must prove every one of these three elements beyond a reasonable doubt before you can return a verdict of guilty, do you have any prejudice or bias against such a law?”

Defense counsel states here, to quote from his brief, that the purposes of the two questions were.as follows:, (1) “ * * * Defendant merely wanted to know if the juror, would carry out and apply the law, as given by the judge, to the facts of the case. * * * ” (2) “ * * * It merely asks the juror that, if the court were to instruct him that there were three elements to the crime charged, and before a verdict of guilty can be returned, the State must prove each element beyond a reasonable doubt, does he have any bias or prejudice against such a la,w. ^ ^ ^

The lengthy descriptions of the asserted three elements of the crime, which counsel gave in connection with his interrogation, undoubtedly tended to render both questions somewhat ambiguous and confusing. But assuming for the sake of argument that such questions were proper, and should not have been excluded, we do not find that the defendant was prejudiced by the exclusion of theuií Of similar import and purposes, it appears from the record, were other, questions which counsel was permitted to propound. As the judge remarked: “The Court has permitted and will permit, counsel to examine .the prospective juror on the law of burden of proof, reasonable doubt and presumption of innocence.” He.nce, we do not find that reversible error has been committed. 1.

Bill of exceptions No. 60 was-taken to the Court’s piermitting the state to-introduce into evidence five exhibits which purported to be packages containing gleanings; taken from the clothes of the defendant at the time of his arrest. Defense counsel argues here that according to LSA-R-.S. 40 :- 961 the possession of marijuana is a crime only 'when that substance contains “any quartity of the- Mexican plant known as marijuana”; that-during the trial of this defendant no testimony was introduced to show that the mentioned packages contained any quantity of such Mexican plant; and that, hence, the exhibits were -immaterial and irrelevant.

The testimony showing the facts and circumstances leading to the introduction of these exhibits is not included in the bill of exceptions or annexed to it and made a part thereof. In State v. Gaines, 223 La. 711, 66 So.2d 618, 620, which presented a somewhat similar situation, we observed:

“This case was appealed from the Criminal District Court for the Parish of Orleans, and, as is customary in transcripts in appeals from that court, all óf the testimony taken during the trial has been placed in the transcript. Since all the testimony relating to the offering in evidence of the articles is in the transcript, counsel may have expected that we would consider it to determine whether the ruling of the trial judge on the admissibility of this evidence was correct. Any such expectation, of course,- is futile, because for us to consider the testimony, although in the transcript, it must be presented in a bill of exception perf ected in the manner prescribed lay our Code of Criminal Procedure and the jurisprudence of this court.
* * * * * *
“We said in State v. Honeycutt, 218 La. 362, 49 So.2d 610, that it is well settled in the jurisprudence of this court that in a criminal case, even though the testimony may be taken, transcribed, and placed in the transcript, it cannot be considered by us -and has no proper place in the record unless it is annexed to, and made a part of, a bill of exception timely perfected. * * * ”

Since the mentioned testimony pertaining to the exhibits in question is not properly before us we cannot say that the trial court erred in permitting the introduction.

Bill of exceptions No. 68 raises the question of the correctness of the trial-court’s instructions respecting the verdicts which the jury might render. According to. such bill objection was made to “responsive verdicts 2, 3, 4, 5, 6, 7, 8, 9, as not being responsive to the charge before the Court.”. And in connection with his argument here defense counsel directs our attention to that part of LSA-R.S. 15:386 which reads: “Whenever, the indictment sets out an offense including other offenses of less magnitude or grade the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment. * * * ”

We can conceive of no good reason why the possible verdicts as announced by the trial judge were not in keeping with that provision and, hence, correctly stated. Nor does the defendant point out in what manner they were not responsive. In fact it is said in counsel’s brief that “while verdicts 2, 3, 4, and 5 are made responsive to the charge in the Information, they are not crimes of ‘less magnitude or grade’, but on the contrary they are crimes of equal magnitude and grade with the crime charged in the Information.” ■

Each of the mentioned possible verdicts (2, 3, 4 and 5) relates to a criminal act. specifically charged in the bill of information. We fail to understand, therefore, in what respect the trial judge erred when he instructed the jury that it could bring in a verdict of guilty as to any or all of the acts so charged.

The remainder of the possible verdicts which the judge stated might be rendered dealt with “attempted” acts — attempted possession, attempted control, etc. In State v. Johnson, 228 La. 317, 82 So.2d 24, this court, in ruling admissible certain evidence as tending to show guilty knowledge, held that “attempted possession” was a responsive verdict to a charge of possession of narcotics. See also State v. Nicolosi, 228 La. 65, 81 So.2d 771. Similarly, “attempted control” would be responsive to the charge that the defendant did have narcotics under his control. Hence, there is no merit in the bill.

The last bill of exceptions (No. 69) was reserved to the court’s overruling of defendant’s motion in arrest of judgment and, in the alternative, for a new trial.

The motion in arrest is leveled at the alleged insufficiency of the bill of information. Defense counsel contends that it fails to charge a crime known to the laws of this state inasmuch as it does not state that his possession and control of the narcotic drug were with “guilty knowledge”. He argues that “guilty knowledge” is an essential ingredient of the crime with which he was charged, as we so held in State v. Johnson and State v. Nicolosi, both supra,; .and that, hence, the bill of information, in order to be valid, must set forth such ingredient by reciting that he “knowingly” possessed and had under his control the narcotic drug.

We do not concur in this conclusion. The bill of information here’ is couched in the language of the statute and therefore sets forth, and it informs the accused of, the essential elements of- the- crime charged. The cases cited by defense counsel ‘ plainly had reference only to the general criminal intent or guilty knowledge ordinarily required to be proved in obtaining convictions for most offenses. The question of a specific intent was not involved therein. Thus, in the Johnson case we said [228 La. 317, 82 So.2d 30] : “Unlawful possession, where one is invested with some right of dominion, can be defined as a possession which in the ordinary course of human experience necessarily involves knowledge of the fact that one is possessing either rightfully or unlawfully as well as knowledge of the criminal consequences which one should reasonably anticipate to result therefrom. For, no'.crime can exist without the combination of a criminal act and a criminal intent, or an evil motive, or with a guilty knowledge of its consequences. * * * ”

Defense counsel has cited no authority, and we know of none, which requires that the existence of general criminal intent or guilty -knowledge be alleged in the indictment pr information.

Inappropriate and not controlling here is State v. Kelley, 225 La. 495, 73 So.2d 437. The statute defining the crime involved therein specifically recited that the acts constituting the offense should be done “knowingly”. No similar provision is contained in the statute under which this defendant was charged.

In connection with the alternative motion for a new trial defense counsel argues that there was no evidence whatever tending to show that the accused knew that he possessed and had control of the marijuana. But the testimony adduced at the trial is not contained in or made a part of the bill of exceptions. Consequently, and for the reasons given above in our discussion of bill of exceptions No. 60, we cannot say that there was error on the part of the judge in overruling the motion.

For the reasons assigned the conviction and sentence are affirmed.


author: TATE, Judge.

text:
    Adolphus TATE, Plaintiff-Appellant, v. GULLETT GIN COMPANY & LIBERTY MUTUAL INS. CO., Defendants-Appellees.
    No. 4168.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Edgar Corey, New Orleans, Iddo Pittman, Jr., Hammond, for appellant.
    Ponder & Ponder, Amite, for appellee.
   TATE, Judge.

This- is a workmen’s compensation suit. The chief issue is whether plaintiff is disabled by traumatic neurosis. Appeal is taken from judgment dismissing plaintiff’s suit.

Plaintiff Tate allegedly wrenched his back at work while lifting a 370-lb gin brush, on or about September 22, 1953. He continued working until September 28th, according to his' testimony with increasing pain. He is somewhat corroborated by a co-employee, Plart, who while denying Tate’s informing him immediately after the accident, admitted Tate told him of same 2 or 3 days later and was walking “sort of stiff-backed”. '..On September 28th he reported his need of medical attention to his foreman, and was sent to Dr. R. W. Osborn, who found a .mild .lumbosacral strain for which .Tate w&s treated .for about 10 days and discharged on October 7th as.cured.

Although defendants, contend no accident was proven, the testimony of’the employee corroborated by surrounding circumstances preponderantly proves the initial accident, .see Zito v. Standard Accident Insurance Company, La.App. 1 Cir., 76 So.2d 25, Dolhonde v. Gullett Gin Co., La.App. 1 Cir., 25 So.2d 104. It may be noted that Tate consistently repeated from the beginning this history of a wrenching back injury, nor did the District Court find an accident did not occur.

The serious question for our determination is whether there is any residual' disability resulting from what concededly was not a serious injury.

The testimony of Dr. Osborn and of Dr. R. H. Alldredge, orthopedist, support the District Court’s finding that as of the trial there was no residual physical or functional disability at the time of the trial, despite plaintiff’s contention that the hyper-trophic fringes about the bodies of the lumbar vertebrae shown by x-ray represent an aggravation of a dormant osteo-arthritic condition into a.painful one. According to Dr. Alldredge, such formations properly speaking were not a disabling osteo-arthri-tis, but a non-disabling osteo-phytosis which probably antedated the back strain by several years.

Plaintiff’s initial petition filed December 19, 1953, alleged disability resulting only from ■ “Jumbo-sacral sprain, aggravation of an arthritic condition of the lumbar vertebrae.” By amended petition filed April 8, 1954, plaintiff further supplemented his claim of disability as resulting from “post-traumatic neurosis”. Defendant’s argument that said amended and supplemental petition could not be filed (after its answer and the initial fixing for trial) as changing the nature of the demand, overlooks the statutory provision that in compensation suits “the court may in its discretion * * * allow amendments of the petition and answer at any stage of the proceedings”, LSA-R.S. 23:-1315; Osborne v. McWilliams Dredging Co., 189 La. 670, 180 So. 481, Clark v. Employers’ Liability Assurance Corp., La.App. 1 Cir., 27 So.2d 464. “Amendments are permissible at any stage of such a case, even in the Supreme Court”, Mitchell v. Sklar, La.App., 196 So. 392, 394. The District Court properly allowed filing of the amended and supplemental petition.

■Concerning the disability resulting from traumatic neurosis or hysteria, there are two depositions from medical expert psychiatrists in the record, that of Dr. H. R. Unsworth, offered on behalf of plaintiff, and that of Dr. David Freedman, offered by defendant.

Defendant objected to admissibility of the former deposition taken by oral examination for several reasons. Its contention that the téstimony of this apparently well qualified psychiatrist should be totally disregarded because of a critical view expressed by our brethren of the Orleans Court as to his attitude toward the case then in question, Ladner v. Higgins, La.App., 71 So.2d 242, is unsupported by any citation of legal authority or reason.

Further, we see as, little merit in its contention that counsel for defendant was relieved from attending the deposition on April 19, 1954, pursuant to notice received by it on April 9, 1954, as provided by LSA-R.S. 13:3761, by an order to show cause obtained by defendant on April 17, 1954, returnable on April 30, 1954, “why supplemental petition should not be stricken from the record, and why any testimony taken April 19, 1954, under the discovery rules of practice should not be excluded from the record.” This is not by its terms such an order whereby a court may “for cause shown enlarge or shorten the time”, LSA-R.S. 13:3761, or may “upon motion seasonably made * * * upon notice and for good cause shown * * * order that the deposition shall not be taken,” LSA-R.S. 13:3762.

However, defendant correctly urges that the deposition of Dr. Unsworth offered by plaintiff, sworn to and taken before plaintiff’s attorney, was not admissible since: “Depositions shall be taken before an officer authorized to administer oaths, who is not an employee or attorney of any of the parties or otherwise interested in the outcome of the case”, LSA-R.S. 13:-3743. (Italics ours.) For defendant did not agree to the deposition' to be taken before such officer, LSA-R.S. 13:3741, nor waive by failing to object to such disqualification “before the taking of the deposition”, LSA-R.S. 13:3744, subd. B since counsel for defendant failed to appear at such time. It therefore appears that the objection was timely made “as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.” LSA-R.S. 13:3744, subd. B.

For this reason, we are unable to consider the deposition of Dr. H. R. Unsworth and must sustain the objection of defendant to its admissibility.

Defendant took the deposition of Dr. David A. Freedman, psychiatrist and neurologist, and Dr. Rufus H. Alldredge, orthopedist above discussed, by written interrogatories after trial, reserving his right to do so at the,end .of the trial. Counsel for plaintiff objected to the motion to issue a commission to take written interrogatories as no longer authorized since the specific repeal of Code of Practice Articles 425-440 by the Louisiana Depositions and Discovery Act, Act 202 of 1954, Section 2, LSA— R.S. 13:3741 et seq. Reserving its rights, however, plaintiff filed cross interrogatories. All of these interrogatories and cross interrogatories were duly answered before the Notary to whom the commission and interrogatories were sent.

Although indeed the procedure utilized appears to have been that formerly required by the repealed codal articles, we fail to see how plaintiff was prejudiced, since the substantial requirements of the less cumbersome procedure of the new Depositions Act for depositions by written interrogatories were met, see LSA-R.S. 13:-3771, 3772.

The deposition of Dr. David Freedman is therefore properly before us and was properly considered by the District Court. As to this testimony, the District Court simply observed: “The testimony of Dr. Freedman, a neurologist and psychiatrist, is that the man did not have any post traumatic neurosis.”

Because we believe that the very able District Court reached an erroneous conclusion concerning Tate’s neurotic disability largely attributable to overlooking the full content of Dr. Freedman’s deposition, filed long after the closing of the trial, we are setting forth at some length excerpts therefrom:

“A. I was not asked to see Mr. Tate from the standpoint of his physical problem. I was asked to evaluate him' from a psychiatric standpoint and I did not pérform a physical examination. (Tr-5)
******
“A. I did not examine this man from the standpoint of post traumatic. neurosis. I found him to be in manner a pleasant and cooperative man. He gave me the appearance and history of a steady, sober, hard-working individual who had worked for this company for many years, because he had á very strong sense of duty and was imbued with the feeling that unless he worked hard he would lose all support and all security; that he displayed a great deal of anxiety about his security and a great deal of need to conform and do the proper things. The picture he presented did not seem to me to be that which I associate with a diagnosis of post traumatic neurosis; that is, no acute and sudden event had occurred which overwhelmed this man so that he was left with marked symptoms of anxiety. It seemed' to me that possibly he 'had suffered some local trauma to an already pathological area, an inference I drew from having read the reports of other examiners, and I felt that his preoccupation with this area together with his anxiety about being out of work, apparently the first time that he had found himr self to be physically incapacitated in many, many years, led to a fixation of his symptoms.- (Tr-849)
* * * *• * *
“A. According to my concept of a post traumatic neurosis he is not suffering from post traumatic neurosis. (Tr-9) . "
* * * * * *
“A. According to my conception of a post traumatic neurosis Mr. Tate’s findings are inconsistent with such a diagnosis.' (Tr-10) ,■ - •
******
“Q. 22. Doctor, it is your opinion, is it not, that the combination of whatever ' injury. Tate suffered and his own insecurity may well have served to fix his attention on his back and intensify what in themselves might not be significant symptoms? A. Such was my opinion.
“Q. 23. And it is your opinion, is it not, Doctor, that the accident and injury brought into play and focused his attention on the previous pathology in his'back?''; A. It is my opinion'that symptoms which"previously were present but which he' tended to disregard he now began to pay attention to, yes.
“Q..,- 24. Doctor, is it npt also your opinion that as a result of his injury Tate believes that■ he cannot now work for fear, of increasing the pain in his back f A: Yes, that is my opinion.” (Tr-17).

As will be seen from the foregoing- excerpts, Dr. Freedman diagnosed Tate’s condition as a disability resulting from the accident because the injury brought into play and focused Tate’s attention on the previous pathology in his back, by reason of which “fixation of symptoms” Tate cannot work for genuine fear of increasing the pain in his back. This medical testimony was introduced by defendant and is not contradicted in the record.

Dr. Freedman’s definition of traumatic neurosis appears to be a technical psychiatric ■ one. Webster’s “New International Dictionary” (Second edition; unabridged) defines “Traumatic neurosis” as: “A form of neurosis seen especially in soldiers in active warfare caused by injuries and fear.” This dictionary defines a “neurosis” as: “a functional nervous disorder, without demonstrable physical lesion.” Common usage of the term “traumatic neurosis” in personal injury lawsuits connotes a nervous or mental disorder or disability produced by or resulting from an accident or trauma; see 42A Words & Phrases, p. 7, Traumatic Neurosis; Malone, Louisiana Workmen’s Compensation p. 337, Section 276 “Traumatic hysteria or neurosis.”

At this latter citation, Professor Malone states:

“Later the courts came to a recognition that- a blow or other accident could produce symptoms of disabling pain or paralysis long after the observable physical signs or hurt had disappeared, and where the medical proof is satisfactory they are now’ willing to declare the victim of traumatic hysteria to be’ a disabled' person entitled to' compensation under the Act.”

Awards of compensation for disability because- of neurosis resulting 1 from an accident ‘in the • course of employment are allowed by our Louisiana courts, Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855; Dupre v. Wyble, La.App. 1 Cir., 85 So.2d 119; Ladner v. Higgins, La.App., 71 So.2d 242; Peavy v. Mansfield Hardwood Lumber Company, La.App., 40 So.2d 505; Lala v. American Sugar Refining Company, La.App., 38 So.2d 415; Vega v. Higgins Industries, La.App., 23 So.2d 661; Porter v. W. Horace Williams Co., La.App., 9 So.2d 60; Vaughn v. Solvay Process Co., La.App. 1 Cir., 176 So. 241. “There is no doubt in our minds that nervousness, neurosis, or emotional disturbances, superinduced by injuries suffered by a workman, can be just as devastating to the ability to return to work as are physical or anatomical injuries, and are equally as compensable under the statute”. Lala v. American Sugar Refining Company, La.App., 38 So.2d 415, at page 421. “As in other connections, a pre-existing weakness in the form of a neurotic tendency does not lessen the com-pensability of an injury which precipitates a disability neurosis.” Larson, Workmen’s Compensation Law, Section 42.22; Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855.

The lay testimony, in part corroborated and not denied by defendant’s own witnesses, indicates that this ‘51-year old colored laborer before the accident was a hard-working and cooperative employee, without previous record of traumatic injury. He had worked for defendant employer over- a period of. 23 years, except in their slack seasons, and had been steadily employed by them for three years, willing and able to work overtime long hours during the rush seasons. Before the accident Tate had 'been actively interested in outdoor sports, such as hunting and fishing. He had bought and paid for his own home.

However, since the accident he constantly complains of pain in the small of his back,, walks with stooped -bearing, stiff-backed or with a limp, and his movements have been slow and stiff. He no longer assists his wife around the home or hunts or fishes, and his wife or neighbors mow the grass, etc:, for him. This lay testimony is most impressive and was not shaken by searching cross-examination. “It is the accepted rule that courts will not impute perjúry to apparently credible witnesses, Miller v. Hartford Live Stock Ins. Co., 165 La. 777, 116 So. 182; Fogleman v. Interurban Transportation Co., 192 La. 115, 187 So. 73, particularly in the absence of any evidence in the record to indicate that the evidence was false or unreliable. Bonanno v. Decedue, 186 La. 1041, 173 So. 756,” Cockrell v. Penrod Drilling Co., 214 La. 951, 39 So.2d 429, 432-433. Further, the District Court did not reject this testimony, although discounting it somewhat as being these witnesses’ observation of behavior by plaintiff which might be voluntary by the latter.

The crux of the able District Court’s decision is, having rejected Dr. Unsworth’s testimony and -not considering Dr. Freedman’s testimony, as follows:

“This leaves the plaintiff with no medical testimony whatever to substantiate his claim, and the only evidence in the record is the testimony of several of his neighbors concerning symptoms which were strictly subjective and emanating from the plaintiff himself. It is true that the plaintiff had-been a reputable employee for many years and it is hard to believe that a man of his record would become a malingerer, but in view of the circumstances surrounding the case and all the' testimony, the court has to come to this" conclusion.”

As noted, however, the District Court was constrained to find Tate malingering in the absence of any medical evidence to substantiate his claim; actually, however, the only psychiatric evidence in the record substantiates Tate’s claim.

The suspicious circumstances in the record, according to counsel for defendants, are: (1) the delay in Tate’s reporting the accident for almost a week; (2) Tate’s immediate consultation of a lawyer just a few days after repeating the accident and for treatment to Dr. .Osborn, and just a Jew days before.his- discharge, by the latter. The; former circumstance, of course, is not .of great significance;for instance, Dr. Osborn, whose testimony was taken .by defendant, frankly stated that it isn’t at all rare for a workingman with .a minor back strain to work several days before he seeks assistance (Tr-128),; and. the law reports include a multitude of, similar, instances.

But the latter circumstance, although consistent with the deep-seated anxiety of his employer’s treatment of him, is certainly properly to be taken into account. However, both the medical and the lay testimony in this record corroborate the úncontra-dicted medical diagnosis of Tate’s neurotic disability resulting from the accident.

As to whether Tate-was malingering, Dr. Freedman testified: “It is my impression he is not” (Tr-14); “I don’t know whéther Mr. Tate is malingering. I think this is something 'that has to be proven in extra-medical ways”, Tr-11. According to Dr. Freedman, these extra-medical checks on malingering are: (1) Does he behave away from the doctor in a manner inconsistent . with his complaints to the doctor ? (Tr-11) ; (2) Is the prior history of hard-work and good employment record, given by the employee, accurate — that is, are his present attitude and behaviour consistent or inconsistent with that prior to the accident? (Tr-14; letter report dated May 12, 1954) , ■

There is no evidence in the record to indicate any behaviour-' by Tate " at "any time following the áccident inconsistent with that to which he testified. The District Court itself commented on Tate’s excellent working record ’ priór to' the injury. Dr. Freedman’s diagnosis ' is thus corroborated, rather than weakened,'by the lay testimony.

-Defendants contend that the. rate of compensation should be based on a 40-hour week at the claimant’s pay of $.94 per hour, 65% of which is a • compensation rate of ■$24.44 per week. However, the testimony indicates the injury occurred during his employer’s rush season when as a regular portion of his duties the employee worked 12-43 hours per day and was paid time- and-one-half. His earnings the week of the accident were $65.80, and for six of the eight weeks preceding the accident Tate earned in excess of $51 and as high as $58. Further, based upon a six day week and including " overtime pay, plaintiff’s weekly wage was $48.08, 65% of which exceeds the statutory maximum' of $30 per week.

To compute the weekly wages for purposes of fixing the compensation rate, a six day week should he used when the employee does not work any fixed number of days per week, Troquille v. Lacaze’s Estate, 222 La. 611, 63 So.2d 139, and overtime wages should be included in the computations when regularly paid at the time of the accident. Buxton v. W. Horace Williams Co., 203 La. 261, 13 So.2d 855, Walls v. Solvay Process Co., La.App. 1 Cir., 21 So.2d 109, certiorari denied.

Under all the facts and circumstances of this case, we do not feel defendants’ action in refusing to pay compensation was arbitrary and capricious so a-s to entitle plaintiff to the penalties claimed under LSA-R.S. 22:658.

For the above and foregoing reasons, the judgment of the District Court herein is reversed, and it is hereby ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Adolphus Tate, and against defendants, Gullett Gin Company, and its compensation insurer, the Liberty Mutual Insurance 'Company, holding said defendants liable jointly and in solido in the full sum of $30 per week commencing September 30, 1953, during plaintiff’s disability, not to exceed 400 weeks in all, together with interest at the legal rate upon each delinquent installment from date of delinquency until paid; less a credit of $24.44 compensation paid. Said defendants are further cast with' all costs of thés’e proceedings' and’of this appeal (except the costs and deposition fee of Dr. H. R. Unsworth’s inadmissible deposition) .

. Reversed and . rendered.

      . Tate was originally referred by his attorney to Dr. Lewis Gebhuer of New Orleans, who examined Tate on October 1, 1953. Plaintiff did'not see fit to take the testimony of this physician though counsel for defendant offered the examination report (indicating an initial diagnosis of two or three weeks further disability be-' yond October 1 from a left sacroiliac strain.) and attached it to what he called a “bill of exception”. Of course, the District Court properly ruled that these examination reports were not admissible in evidence. The failure to take .the, testimony of this doctor may be construed against plaintiff, although plaintiff correctly urges that while this unfavorable inference may reflect as against the initial lumbosacral strain it is .not relevant as to the existence or not of a disabling mental condition resulting from the accident for which Dr. Gebhuer did not examine Tate.


author: TATE, Judge. LOTTINGER, Judge

text:
    J. Claud WELCH v. NEWPORT INDUSTRIES, Inc., et al.
    No. 4143.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Writ of Certiorari Denied June 11, 1956.

      Lawes, Cavanaugh, Hickman & Brame, Lake Charles, for appellant. ■ . . .
    Carmouche, Martin & Wilson, Ernést' G. La'Fleur; Jr., Lake Charles, for appellees.
   TATE, Judge.

' This is a -suit for workmen’s compensation benefits. Appeal from a judgment based on an award for total and permanent disability is taken by' co-de'fendahts, the employer, and its compensation insurer!

The chief 'question is whether plaintiff Welch is entitled to protection of the Compensation Act, LSA-R.S., 23:1021 et. se,<j. as either (a) an employee; or (b) an independent contractor doing substantial manual labor. Plaintiff contends he is an employee ; defendants contend Welch was only an independent contractor, but deny that his duties included the performance of substantial manual labor.

In the following discussion, we are expressly not deciding whether Welch was or was not an employee by reason' of Newport’s alleged right to control his operations.

For we have determined that, even if Welch was only an independent contractor as contended by defendants,- nevertheless'Welch’s employment is included within the protection of the Act under the italicized provisions below:

“(6) ‘Independent Contractor’ means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his ■ work only, and not as to the means by which such -result is accomplished, and are expressly excluded from the provisions of this Chapter-unless a substan■■tial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in 'which- case the independent contractor is expressly covered by the provisions of' this Chapter.” LSA-R.S. 23:1021(6). (Italics 1 ours.) .

.(The italicized clause 'was added by Act .179 of 1948.)

In this case of initial' judicial interpretation- of the clause in -question; defendants’ counsel most ably argues that an “independent contractor” is not entitled to the benefits -of the Act unless: (a) a “substantial part”, meaning a considerable or-large portion, rather than merely some time; (b) was spent in the performance of “manual labor”, meaning not simply use of his hands such as in driving a pickup truck, loading and unloading supplies, in the performance ■of duties primarily supervisory in nature, but use of his hands to perform .strictly non-supervisory duties.

We cannot agree that the provisions of the Compensation Act, remedial in nature, should be so narrowly construed.

While in- -some legal sense's “substantial” indeed has; the signification of the larger part, such as in “substantial compliance”, legally the .words “substantial part” also are used not as a term of mathematical precision, but also so as to.mean the converse of insubstantial or immaterial.

As was stated in a federal case interpreting the words' “substantial part” in connection with the interpretation of the Fair Labor Standards Act, 29- U.S.C.A. § 201 et seq., a remedial statute with similar legislative intention and judicial interpretation,

“ ‘A substantial part’ is not a phrase of mathematical precisión, For the purposes under consideration, I think it is satisfied by less than 50 per cent. I do not. think that in the context in which it is used by the Supreme Court, ‘substantial’ means the same as when it is used in the phrase, ‘substantial performance of a contract.’ I construe the language to mean the converse of insubstantial or immaterial. See, Schainman v. Dean, 9 Cir., 1928, 24 F.2d 475, 476. By such' a standard, I find that a substantial part of the plaintiffs’ activities was in the production of goods for commetce”, Berry v. 34 Irving Place Corporation, D.C., 52 F.Supp. 875, at page 879.

See to same effect, Frank v. McKeekan, D.C., 56 F.Supp. 369; see 40 Words and Phrases, Pocket Part, Verbo, Substantial Part. ,

Similarly, “supervisory '.duties” and “manual duties” are not necessarily contradictory terms for purposes of determining compensation coverage. “Supervisory duties” may include the performance of manual labor ’so as to entitle the individual employed in the performance thereof to the protection of our- Compensation Act. It may technically be “supervisory” to truck supplies or to aid in’loading logs, or to unbog- machinery, or maintain machinery in operation, all with the use of one’s own hands, but the true legal meaning of the term “manual labor” is tó denote work in which the physical clement predominates over the ' mental,- see 26 Words and Phrases, Verbo Manual Labor, p. 603. For purposes of determining compensation coverage, the distinguishing fea-, ture is whether the workingman partid-, pates physically himself, rather than — so to speak- — -aloofly directs in clean Sunday clothes. - . -

Further, earlier jurisprudence interpreting the initial definition of an “Independent Contractor” 'as one who renders service, “other than manual iabor,” see above LSA-R.S. 23:1021(6), held that one who furnished manual labor to another was not deprived of the protection of the A'ct because he also furnished equipment, supplies, supervisory services, etc., see Nesmith v. Reich Bros., 203 La. 928, 14 So.2d 767; Allgood v. Loeb, La.App., 22 So.2d 568, and cases therein cited.

Newport admits that at least one day a week,- Welch drove his pickup truck on the two-hour (one way) trip from Oakdale (Newport’s site) -to Jasper, Texas (site of job) transporting supplies, which Welch loaded into his own truck with his own hands at Oakdale and unloaded on arrival back at Jasper, Texas; that he drove his ■pick-up truck, . transporting supplies to crewS, daily; that he built the supply shed with -his- own . hands; that at least occasionally he helped load 'the railroad- cars,maintain and repair machinery, wield an-ax, shovel, or wheelbarrow, or drive a tractor/ And in fact, there is no question' but that Welch was injured when -he with one - helper, each. using ' with their own hands the appropriate tools, dug a ditch, cut logs, and shoved with logs and at logs to únbog a stuck tractor. The District Court specifically found “plaintiff did manual labor on the job”,1 (Tr-353.)

In urging their' more restrictive construction-of the statutory provision, defendants rely' -factually on the argument that Welch was responsible for the • operation of -several trucks and pieces of equipment and approximately -thirty men, and therefore could not spend much time in what it argues is “manual labor”. •

■ The, testimony -of several of-defendant’s “contractors” was taken and was- in general that in the performance of their contracts no appreciable manual labor was involved. However, at least one of. these “contractors” called by defendants and a forme-r “contractor” testifying on behalf of plaintiff, estimated that 50.% of the time spent in performance of duties was spent in -the performance of manual labor. The other- -“contractors” further admitted that-they were not personally familiar with.the operations by Welch in the specific performance of Welch’s duties under his contract.

The testimony of plaintiff -himself is’exceedingly strong and detailed as to the various acts of manual labor that he regularly performed, and as aforesaid it is corroborated by two other of Newport’s present or ’ former “contractors”' arid by a number of the members of Welch’s former crew.

For instance, aside from his duties in the transport and unloading of supplies, Welch testified he averaged about 5’ hours per day at the loading ramp at the railroad tracks (where he had built with' his own -hands the supply shed), where he personally hooked and unhooked the net to unload the various trucks of.his crew-as .they drove up with stumps for shipping, and where as ground-man he picked up the loose stumps and wood which fell periodically to . the. ground' from the net in the process of transfer from the trucks to the railroad car. Welch also with shovel and wheelbarrow often re-shaped the ballast and dirt ramp after, the trucks disarranged it.

While perhaps it seems unusual at first that a “contractor” grossing ten to twelve thousand dollars a month, with 30 men working under him, had the time to perform much manual labor, the testimony when considered witness by 'witness preponderates to the effect that Welch regularly and recurrently performed a substantial amount of manual labor. Further, it is also uncontradicted in the record that out of this large gross earning, Welch only realized a net earnings of $75-90 per week, or slightly in excess of Newport’s written guarantee Of “weekly earnings in excess of $55.00”. (P-2.)

Defendants further urge factually that Welch performed his contract for approximately six months following the accident, despite the alleged disability; therefore could not have much manual labor to perform or could not be disabled from its performance. However, Welch produced evidence that as the painfulness increased following the initial injury, the .heavier portion of his- duties were performed by'another member of his crew, or when performed by Welch himself, then only with pain and suffering.

We do not believe there is an appreciable dispute concerning plaintiff’s medical and legal disability. He sustained a ruptured intervertebral disc in the accident of March 2, 1953, which disc was surgically removed on September 1, 1953. Due to the residual effects of the initial injury and the consequent surgery, Welch cannot perform or cannot perform without pain some of the substantial duties of occupations similar to that in which engaged at the time of the accident. He is therefore totally disabled within the meaning of our Compensation Act, Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695; Estilette v. United States Fidelity and Casualty Co., La.App. 1 Cir., 64 So.2d 878; Fruge v. Pacific Employers Insurance Co., La.App. 1 Cir., 71 So.2d 625, affirmed as to other grounds 226 La. 530, 76 So.2d 719; Strother v. Standard Accident Ins. Co., La.App. 1 Cir., 63 So.2d 484; Fontenot v. Goldenstern Pipe & Supply Co., La.App. 1 Cir., 50 So.2d 484; Scott v. Fulton Bag & Cotton Mills, La.App., 65 So.2d 397.

Plaintiff-appellee has answered the appeal requesting the award of penalties and attorney’s fees under LSA-R.S. 22:658 for the arbitrary and-capricious failure to pay compensation to an injured workman without probable cause. Although we have resolved the factual and legal issues against defendants herein, the failure to pay compensation herein seems to have been based upon bona fide and substantial factual and legal contentions, so as not to require assessment of penalties herein.

Plaintiff-appellee further requests by answer to the appeal that we amend the decree to permit plaintiff to reopen these proceedings below to recover additional reasonable medical expenses, insofar as within the statutory allowance, should defendant refuse to provide same; and while we doubt in view of the clear legal liability for same that such relief is necessary, such amendment is accordingly granted; and for the above and foregoing reasons, the judgment of the District Court herein is affirmed; all costs to be paid by defendants-appellants.

Affirmed.

LOTTINGER, Judge

(dissenting).

It has been held that the test of what constitutes independent service lies in the control exercised, the decisive question being as to who has the right to direct what shall be done and when and how it shall be- done. See Durant v. Industrial Lumber Co., La.App., 6 So.2d 164.

The record shows that the’ company had no control over the operations of the petitioner except as to the resülts.' Of course he was told what areas in which to cut the stumps. This was for. the protection of both petitioner and defendant so as to assure that petitioner’s employees would not trespass upon third parties properties. As to the clearing off of the property after the stumping operations, and the specifications as to the size of wood to be delivered, these were mere factors as to the result of the work, and cannot be considered as control. The same is true as to the act of petitioner in picking up pieces of wood from the railroad tracks. Newport did not direct the petitioner how to run his operations, all it was interested in was the results of the work. It did make suggestions from time to time, such as to how the railroad cars should be loaded for maximum efficiency, however, it did not direct that the cars must be loaded in any particular method.

The record shows that petitioner had the right to hire and fire his own employees, and that the employees were under the control of petitioner and were paid by him. Petitioner owned his own equipment, purchased his own supplies, and was in full and complete charge of the work. He was not carried on the-payroll'of Newport, and the only interest Newport had in the operations of petitioner was as to results. As a matter of fact Welch’s testimony is convincing that he was not an employee. He was asked, “Now, was there any actual supervision other than to see that you stayed on a particular tract’ that they may have owned stumps on and to see- that the wood was of a particular size? A. That consists of the majority of the supervision.” I am therefore, of the opinion that petitioner was an independent contractor, and certainly was not an employee of Newport.

The next question presented is whether petitioner was an independent contractor doing substantial .manual labor so as to come within the provisions of subsection (6) quoted above. I have found no cases wherein this clause has been involved. In Webster’s Universal Unabridged Dictionary under the word “substantial” I find the following definitions^ ■

, “1. Belonging to substance; real; actually existing.
“2. Real; solid; true; not seeming or imaginary.
“3. Corporeal; material.
“4. Having strong substance; strong; stout; .solid; as, substantial cloth; a substantial fence,or gate.
“5. Possessed of goods or estate; responsible; moderately wealthy; as, a substantial freeholder or farmer; a substantial citizen.
“6. Vital; important; as, they agree on all which is substantial.
“7. Of considerable sise or amount; as; a substantial gift. (Italics ours.)
“8. In biology, pertaining to the tissue of any part or organ. Substantial damages; a sum awarded by a jury intended to cover the real damage, instead of a nominal sum.”

Also in Black’s Law' Dictionary, Fourth Edition, under “substantial” I find as follows :

“Of real worth and importance; of considerable value; valuable.”
“Something worth while as distinguished from something without value or merely nominal.” •

Also in Black’s Law .Dictionary under “Substantial Damages” I find the following:

“A sum,- assessed by way of damages,. which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right. Considerable in amount and intended as a real compensation for a real injury.”

However, it is apparent from the said statute and the above that at least a large part of the work time of an independent contractor’s work must be manual labor so as to qualify under the act.

, I do not feel. that, petitioner has'proved that a substantial or large part of his personal work was manual labor. True he did repair, of help repair^ his own equipment which needed repairing on the job. This repair work, however, .was not carried on every day but just once in a while and it only required a short period of time. I feel also that the-building of the shack for storage of. supplies was manual labor but the shade was built in the beginning o'f the contract which took plaintiff, about one week to complete, working thereon intermittently with the help of others. 'Petitioner’s, act of picking up bits of wood-from the- railroad track would constitute a certain amount of manual labor but it was only done-occasionally by petitioner. This and the running of strip lines might be considered'as a part of his supervision and for' his own benefit but still cannot be. considered a substantial or large part-of'his work. . Any encumbrance on the tracks would have delayed petitioner’s' shipments to the company for which he would have suffered monetary losses. Furthermore, the mere driving of his pickup truck to the company for supplies once a week cannot be considered substantial manual labor. Considering all of the manual labor performed by. plaintiff, primarily and incidentally connected with his contract with Newport, I still cannot classify same as taking up 'a: substantial or large part of plaintiff’s work time in carrying out the terms of the contract.

Petitioner employed some thirty men and made some ten to twelve thousand dollars per month. ‘I believe’that'it is apparent that the greatest part of his time was employed in the supervision of - his men. All the other contractors of Newport who testified stated that they did very little manual labor if any. The record shows that the contract continued in operation until its completion, about six months after the accident, without the addition of any further laborers.

I feel that the.record, as a whole, shows conclusively that petitioner was an independent contractor, and that he did not do. a substantial amount o f. manual, labor so; as to come within the provisions of the Workmen’s Compensation Act.....

■ For the above and foregoing reasons I respectfully dissent from the majority.


author: LOTTINGER, Judge.

text:
    Mrs. Mollie Brumfield FISHER et al. v. James L. ROLLINS et al.
    No. 4166.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    Writ of Certiorari Granted June 11, 1956.

      C. Paul Phelps, Ponchatoula, fo'r appellant.
    Harqld Moses, New .Orleans, Iddo Pittman, Jr., Hammond, for appellee.
   LOTTINGER, Judge.

The learned tri.al judge ad hoc in this matter rendered written reasons, for judgment which we herewith set out in full:

“On May 8, 1951, a suit was filed by Mrs. Mollie Brumfield Fisher and her son, Freddie Fisher, against James L. Rollins and his wife, Dottie Brumfield Rollins, in which the plaintiffs sought the cancellation of a deed dated June 22, 1950, from them to the defendants on the grounds of fraud and alternatively, for lesion beyond moiety. In that suit the Federal Land Bank was impleaded as a party defendant, and the plaintiffs alleged that at 'the time of the confection'of a conventional mortgage from the-defendants to the Land Bank on August 4, 1950, the Land Bank was in possession of information indicating that the consideration set out in the deed of - June 22, 1950,- ‘was vile,’ and one segment of plaintiff’s prayer asked that the Land Bank mortgage be reformed so as to exclude the subject property from the effects- of the mortgage. Issue was , joined- in -that suit by answer filed on behalf -of the defendants, and 'an exception of -no cause or right of action was interposed by the Land Bank levelled at the proposition that at the time of the execution of the mortgage, the conveyance records showed that the defendants were the owners of the property and that the Bank was. entitled to rely upon the public .records. Minute entry of the court set forth the dismissal of the Bank as a party defendant. The case was then tried on the merits with the issues in controversy boiled down to two cardinal propositions, viz.: 1. Whether or not the sale of June 22, 1950, should be cancelled on either of the grounds alleged or 2. Should the act of sale be reformed into a mort-r gage. In either case it was to be determined how much the plaintiffs were ■ actually indebtéd to the defendants', and whether or not the plaintiffs should be credited for the sum of $1,088 received by the defendants from an , insurance company under a policy covering a dwelling on the property destroyed by fire and the price of $1,500 received bythe defendants from Willie and Charles Branch for that part of the property known as the ‘Negro Quarters,’ and for the sum of $40 paid by .Freddie Fisher to the defendants. The •suit was vigorously.contested, the transcript consisting of 132 pages of testimony and numerous documents, and was submitted for decision on briefs.
. “In plaintiffs’ brief the following pertinent ■ statements were made: ‘Thereafter .the Federal Land Bank filed, an-exception of no cause or right of action and which was tried and by the trial court sustained -and- as to them the plaintiffs’ petition dismissed,’ the further statement, ‘Of course, the question of the interests of third parties must be. considered, but if the plaintiffs are entitled to any-relief at all, whatever relief they are entitled to is subordinate to the rights of the Federal Land Bank-for-their mortgage.’ Further the brief states, ‘In the event the “Coffee Pot” deed is- cancelled, or in the event it is reformed to a mortgage the Federal Land Bank has a valid first mortgage on the property unless and -until the- appellate court reverses the court below who sustained their exception.’ With respect to the amount owed defendants by plaintiffs the following statements appear,- ‘The sum of $314.04 had been tendered to Rollins in the original suit,’: and ‘In this connection it is again significant to note that - tender of all amounts due the Rollins was made in open court.’
“Judgment in the .first suit was rendered on June 24, 1952, setting aside and cancelling the sale of June 22, 1950, and recognizing the plaintiffs to be the owners of the property, and ordering the plaintiffs to pay to the defendants the sum of $314.04, being the excess of the indebtedness owed defendants over the credits to which plaintiffs were entitled by virtue of the insurance proceeds, the consideration of the sale to Willie Earliest Branch, and $40.00 cash received by defendants during the time defendants asserted title to the property. Also the judgment noted parenthetically that the suit against the Federal Land Bank had been dismissed on exceptions.
“On -October 13, 1954, a writ of fieri facias was obtained and the Sheriff seized the subject property and it was advertised for judicial sale to satisfy the judgment of $314.04 against the plaintiffs. On "November 2, 1954, plaintiffs filed the present suit for a rule to show cause,.that upon depositing the sum of $314.04 into the registry of the court, why the said sum should not be applied to the extinguishment of the Land Bank mortgage and that upon the payment of said sum 'the mortgage should be cancelled as to plaintiffs’ property, and in the event.plaintiffs wer.e entitled to none of this relief, that the payment be deferred until such time ás it would be ample to discharge the mortgage and'pending such time the escrow be returned to plaintiffs. The Sheriff proceeded" with the advertisement. On -November. 29, 1954, a supplemental and amended petition ■was filed in -which plaintiffs- sought to enjoin the Sheriff- and the defendants, from proceeding with the judicial sale of the property, making reference to-the fact that defendants had filed exceptions to the suit of November 2, 1954, and had not otherwise" appeared. The rule was set down to be heard on December 3, 1954, but from the record there does not appear to have been any hearing pr action on same. Finally, on December 3, 1954, with the Sheriff’s sale set for December 4, 1954, plaintiffs were able to accomplish their purpose and effectively blocked the sale by dbtaining ' an ' order decreeing ' 'á temporary restraining order without a hearing against the Sheriff and defendants upon furnishing bond in the sum of $100.00; This order was , signed by the outgoing Judge of. Division ‘A’ despite the fact thatap order for. ¡a. rule to, show cause had been signed on the same petition . on, November 29, 1954, fixed to be heard ,on December 3, 1954, by the Judge, of Division ‘B.’t ■
“The defendants (Fish'ér's) and the Land Bank as above set out interposed pleas of res'juflicata and exceptions of no cause or .right of action to plaintiffs’ suit of November 2, 1954, and these ■pleas and exceptions were argued before the court by agreement of counsel at Hammond, Louisiana,¡on December 10, 1954, and submitted for decision on briefs to be filed by the parties.
“Since the institution of this suit one of the plaintiffs, Mrs. Mollie Brumfield Fisher,’has departed this life and C. Paul Phelps, attorney of record for plaintiffs, has been substituted as party plaintiff in his official capacity as the testamentary executor of the estate.
“On the one' hand, among other claims, defendants, henceforth . to in- ■ elude both the Rollins and the Federal Land " Bank, assert that the pleas of res judicata should-be sustained ■ for ■ the reasons the parties,- the issues, -the causes- of action, claims and demands made are identical in both suits, and that all ■ of the issues, claims and demands between the parties alleged upon in this suit were disposed of by the judgment in the first suit rendered on June 24, 1952, and from which judgment no appeal has been taken by any of the parties before the court.
“On the other hand, plaintiffs vigorously contended that while the parties are the same, the demands do not coincide mainly to the extent that in the first suit the Land Bank’s mortgage was sought to be reformed to exclude the subject property and here it is sought to be cancelled by virtue of the provisions of’ Section 3 of 3411, LáA-C.G'. 'which'-article lists the loss of the mortgagor’s’ interest as one method of the extinguishment of a mortgage. Plaintiffs further advance the ra’thdr hovel idea, despite statements contradictory to this position in their brief 'in the' first suit’, that the judgment in the’first suit did not effectively dismiss the Land Bank on exceptions, since there was only a- parenthetical reference in- the preamble of the judgment to a previous dismissal by , way of a minute entry, and,,.there-fpre, plaintiffs, coijld not appeal where there was no final -.judgment as to the Land Bank. In the alternative, it is urge.d that, if there was such'a judgment dismissing the Land Bank, a judgment of dismissal based on exceptions of no cause, or right of action cannot be pleaded in bar - of a future suit, quoting numerous cases alluding to dismissals on . exceptions for lack of sufficient allegations.
“Now, to determine under the provisions , 'of .Art. ■ 2286 LSA-C.C. whether the present suit is barred by the judgment of June 24, -1952, in the first suit. The. parties afe conceded to be the same. Adverting to.the demands in the two suits, in the first suit plaintiffs sought the reformation of the Land Bank mortgage so. as to exclude the subject property — in. the second suit they sought the cancellation of the mortgage. The sanre-.,re-sult would be accomplished either, by .a reformation or a cancellation. t In either case the result would be the elimination of tlje , Land Bank , .mortgage as it affects, the subject property, which in our opinion, has been precluded by the finality of the first judgment from'which no appeal has been taken. This position is eloquently supported by the argument propounded in plaintiffs’ brief in the first suit as hereinabove referred to. Section 3 of Article 3411, LSA-C.C. does not alter to any degree whatsoever the sameness of the issues, causes of action and de-manas in the two suits. Whatever .the effect of this codal provision, it is the same now as it was when the .judgment in the first suit was,rendered. Needless to state'countless cases universally hold that a third person, in this case the Land Bank, may rely upon those things revealed by the public records, .provided such reliance is in good faith. .
"The contention that there has been no final judgment rendered in the first suit dismissing the suit against the Land Bank is without merit. There was a trial' on the merits and an exceptionally voluminous record was built up; there is a court minute entry noting the dismissal, and the judgment, while recorded in its preamble, expressly states that the Land Bank has been dismissed on exceptions. Looking at this facet of the case in the most favorable light to plaintiffs, if this portion of the judgment fails to meet the test of a final decree, then the judgment was silent on that part of plaintiffs’ original petition and prayer seeking relief against the Land Bank. Therefore, it becomes crystal clear that under the authority oí Edenborn v. Blacksher, 148 La. 296, 86 So. 817 and the cases cited therein that the' silence of a judgment upon any part of the demand that might be allowed under the pleadings is a rejection of that part of the demand and as stated in the Edenborn case ‘and such tacit rejection has the force and effect of res judicata against the subsequent suit for that part of the demand.’
“The laws with respect to imputation of payment are not' here 'involved .for the plain reason that w'e are concerned only with one debt and that is the. sum of .$314.04 as set out in the; original judgment. ,.
“The parties, the causes of action upon which the deihands are based, thé things demanded being' identical in both suits with some variation of phraseology, the pleas of res judicata will be sustained, ' and, accordingly, plaintiffs’ suit with C. Paul Phelps as substituted party plaintiff for Mrs. Mollie Brumfield 'Fisher,' will be dismissed at plaintiffs’ .costs.
“Submitted on this' 28th day of March, 1955, át Hammond, Louisiana.
/s/ Ben N. Tucker
Judge ad Hoc”

A careful review of the record convinces us that the judgment appealed from is eminently correct and we, therefore, adopt the above opinion as our own. ‘

Defendants and Appellees in the instant case have answered the appeal and pray for an affirmance of the judgment and for judgment for an additional sum of 10% of the amount' of judgment as damages for a frivolous appeal. It is' to be remembered that the judgment' appealed from is one sustaining an exception of res judicata. Assuming that the appeal is frivolous, without so. deciding, nevertheless this is not an appeal from a moneyed judgment. It is only where a frivolous appeal is taken from a moneyed judgment that damages therefor are .allowed. See Code .of Practice, Article 907, and Price v. Florsheim, 174 La. 945, 142 So. 135; Racoby v. People’s Furniture Co., 175 La. 383, 143 So. 334; Jones v. Scott, La.App., 167 So. 117 and Jourdan v. Hutton, La.App., 86 So.2d 223.

For the reason's' assigned, the judgment appealed from is affirmed.

Judgment affirmed.


text:
    BROCK FURNITURE COMPANY v. Jessie P. CARROLL et ux.
    No. 4188.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Rehearing Denied April 27, 1956.
    France W. Watts, Jr., Franklinton, for appellant. ,
    Richardson ■& Richardson, Bogalusa, for appellees. ■ ■ : . .
   LOTTINGER, Judge.

Petitioner brought "suit against the defendants in the sum of $603.59 representing the balance due on :two promissory notes executed by defendant Jessie P. Carroll and Which are secured by Chattel Mortgages.. Defendants filed answer alleging- that the chattel secured by one of the mortgages was defective. The Lower Court awarded judgment in favor of’ petitioner, and the defendants appeal1. • -

The petition alleges that petitioner is the holder of two promissory notes, both of which were executed and endorsed by defendant Jessie.P. Carroll. One of the notes is’ secured by a Chattel. Mortgage on a Frigidaire Refrigerator, and the other note is secured by a Chattel Mortgage on a Frigidaire Home Freezer, Petitioner claims a balance'due and .owing on said notes in the amount of $603.50, with 8%' per annum as interest from November 20, 1954, until paid, plus 25% as attorney fees, and for all costs. The defendant filed answer admitting that the Frigidaire Refrigerator was in good condition, but claims that the Home. Freezer has álways been defective and unfit for use as a home freezer, and pray that they be given credit for the purchase price, of the -freezerrand that the note and chattel mortgage on same be cancelled:- ' .-. ,

Although .the notes and chattel mortgages were executed by defendant, Jessie P. Carroll, petitioner claims that the debt sued upon is a community debt and that both Jessie P. .C.arroll and his wife, Edith Carroll, should be held, jointly, severally and in solido, liable for same. In the answer, the defendants admit that the debt is a community one, but claim that onljf the husband, as, head and master of the community, is'the proper party defendant, and that the wife is an improper party to the proceeding.

The Lower Court awarded judgment against both the husband and wife, as prayed for,in'petitioner’s petition: .The defendant has filed this appeal.

The facts show conclusively that the purchases were made for the community of acquets and gains existing between Jessie Carroll and his wife. However, the notes and chattel mortgages were only signed by Jessie Carroll. Under the provisions of Article 2403 of the LSA-Civil Code, it is well established that the debts contracted during marriage are community debts for which the wife is not individually responsible. See Ward v. Trimble, La.App., 20 So.2d 765, and Ellis v. White, La.App., 71 So.2d 640. Under the judgment as rendered below, execution could be had against the separate and paraphernal property of Mrs. Carroll, as she was liable jointly, severally and" in solido under the said judgment. , We feel that Mrs. Carroll was an improper party to the proceeding, and that the judgment below should have been rendered only against the husband, provided that the indebtedness was shown by the facts.

As to the merits of the case, the Lower Court found that the freezer was not so defective as to deny recovery on the part of petitioner. As to the condition of the freezer, the "Lower Court said:

■ “At the time of the trial of this matter the defendant produced several witnesses to show that this home freezer would sweat on the top and outside of the box at various intervals, causing water to drip off said box and onto the floor. He made complaints to the plaintiff concern about this condition and the plaintiff sent its Service Man, Mr. Fergeson, to the defendant’s home on several occasions in order to ascertain ; what was wrong . with; the home freezer. The testimony of Mr. Fergeson, the service man, shows that on the-several visits- which he made to the defendant’s home the box was not sweating and he could find nothing wrong with it. However,":th'e "defendant continued, to " complain and the plaintiff then agreed to take the box back to its place of business and dismantle it in order to ascertain if there was anything wrong with the insulation. This was done, and finding nothing wrong, and after operating the box and determining that it did not sweat, the plaintiff sought to return it to the defendant, but he refused to accept it, because as he stated, the plaintiff found nothing wrong and he knew it would continue to sweat if the condition had not been corrected.
“The evidence was so conflicting at the time of the "trial on May 13, 1955, that I continued the matter until the June term of fhe Court and ordéred" the plaintiff concern to deliver the home freezer to "the 'Sheriff’s office in Washington Parish.in order to make a test of said home freezer to determine-whether or not it sweated to a sufficient extent that it was not fit for the purposes for which it was sold. In compliance with my order the plaintiff concern delivered the home freezer to the Sheriff’s office on May 16, 1955, where it remained until June 6, 1955, at which time a second hearing was held in regard to this matter. While the freezer was in the Sheriff’s office, or on the 24th day of May, I had half a beef placed therein, in order that it would be operated under the same conditions as in the home. The deputy sheriff, Mr. Goff, kept a tábulation on this home freezer the whole time it was in the Sheriff’s office and connected. The morning of the fourth day after the box had been placed in the Sheriff’s office Mr. Goff testified he noticed water on the floor and he called both of the attorneys in this matter in regard to same. The service-man-from the-plaintiff concern came to the; Sheriff’s office arid made an-adjustment, • re-, leasing some two or three ounces -of” gas from -said freezer. He explained -- the reason he did this was because if there was too much gas in the freezer it would cause the suction line from, the compressor to the freezing unit- to thaw up and after the box got sufficiently cold and the motor stopped running, this suction line would thaw out and water would drip on the ' floor. He was apparently right in this because after the adjustment was made, the two or three ounces of gas released from the unit, there was no more trouble experienced from water accumulating on the floor under the box. This is shown both by the testimony of Mr. Goff, as well as the tabulation kept by him and introduced in evidence. I might add that at no time did the box sweat on the exterior thereof while in the Sheriff’s office. The testimony of the defendant and his witnesses, of course, shows the box actually sweated on its exterior while it was in his home. It is strange to me that this box would have sweated in the defendant’s home on the exterior as contended by the defendant if no evidence of this sweating appeared in the Sheriff’s office for a period of twenty-one days. With the exception of the two or three ounces of excess gas being present and which condition was corrected and satisfactorily explained by the service man Fergeson, this freezing unit operated perfectly in the Sheriff’s office for the whole time it was placed therein, and the food that was in this box was in a frozen condition when taken therefrom. Í am satisfied that the box is fit for the purpose it was intended, and I am accordingly of the opinion that the defendant is indebted to the plaintiff in the amount herein sued for.”

Now the law as regards redhibitory vices is set forth in Article 2520 of' the LSA-Civil Code which provides:

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

The burden of proving said vices and defects is upon the purchaser. Article 2530 of the LSA-Civil Code. The Lower Court held, that the freezer was fit for the purpose for which it was purchased, and we are ¡unable to find .error in its holding. Certainly the minor-defect found in the freezer was not such as to permit avoidance of the sale under the provisions of Article 2520.

For the reasons assigned the judgment of the Lower Court will be amended so as to omit the defendant Edith Carroll therefrom, and as amended said judgment will be affirmed. All costs are to be paid by defendant. , ■

Amended and affirmed.