author: HAMLIN, Justice-ad-Hoc.

text:
    233 La. 129
    Succession of Jules LAPENE.
    No. 42858.
    Supreme Court of Louisiana.
    June 10, 1957.
    See also 230 La. 8, 87 So.2d 710.
    Philip P. Spencer, Gaspar R. Bossetta, New Orleans, for defendant-appellant.
    Samuel J. Tennant, Jr., Michael H. Ba-got, New Orleans, for plaintiffs-appellees.
   HAMLIN, Justice-ad-Hoc.

Jules Lapene died testate in the city of New Orleans on April 6, 1889. His last will and testament, dated November 28, 1877 and written in the French Language, was in nuncupative form by public act before Abel Dreyfous, Notary Public. A certified translation of the will reads as follows:

"No. 93 State of Louisiana Parish of Orleans
“28 November 1877 Before Me, Abel Dreyfous, Notary Public for the Parish
Testament of of Orleans, and the City of New Orleans, therein resid-
Jules Lapene ing—
“Appeared: — Mr. Jules Lapene, domiciled in the Parish of Terrebonne, in this State.
“And in the presence of Messrs. Miguel Hernandez, Jr., Anthony Prados, Jr. and Alfred H. Peyne, all residing in this City, witnesses called.
“Who being sound of body and mind, dictated to the undersigned Notary, in the presence of the said three witnesses of the testament - (this word illegible to translator) which follows, to-wit
“My father and mother .are dead, I have never been married. I have two natural children Anne and Jules Lapene who are actually to be found at Pau, Department of the Basses Pyrenees in France.
“I give and bequeath to my two said natural children the quarter of all the goods and whatever nature they may be and in whatever line they may be found which I will possess on the day of my death. If one of the two dies before me the part of the defunct will accrue to the surviver.
“I give and bequeath the remainder of my goods to my legitimate brothers and sisters or to their descendants.
“I name for my testamentary executors and detainers of my goods, my friends Oscar Bois and Leon Queyrouz, of this City, to act together or separately, as they might please.
“I revoke all testaments made by me anterior to this one.
“This testament was thus dictated by the testator to the undersigned Notary who wrote it, in its entirety, of his hand as it was dictated to him and read it to the testator who declared understanding it well and perservering therein, the whole in the presence of the said three witnesses.
“Done and passed in the office, at once, without interruption and without diversion to other acts, the twenty-eighth of November One thousand eight hundred seventy-seven. And after reading the whole by the Notary to the Notary to the testator, in the presence of the said witnesses, the testator signed with the witnesses and the Notary.
“(signed) Jules Lapene
M. Hernandez, Jr.
A. Prados, Jr.
A. H. Payne
Abel Dreyfous
Not. Pub.
“Translation From The French Language Certified Correct.
/s/ Chas. E. de la Vergne Chas. E. de la Vergne”

Jules Lapene was survived by one brother, Jean Baptiste Lapene, surnamed in his family Hyppolite Lapene, who died at Pau, France, on May 7, 1891, and his two natural children, Marie Antoinette Lapene, who-died July 7, 1889, and Jules Numa Lapene.

Jean Baptiste Hyppolite Lapene was .survived by no forced heirs, his closest relative being his cousin, Marie Sallenave Bour-det, known as the Widow Bourdet.

We do not find a birth certificate of Jules Lapene in the record. However, the record is replete with evidence that he was the son of Jean Baptiste Lapene and Anne Sallenave, who predeceased him; that he had five brothers and sisters, and that they all predeceased him, except the aforementioned Jean Baptiste Hyppolite Lapene. For the purpose of this decision, we accept as correct the evidence of Jules La-pene’s birth and ancestry — secondary evidence having been offered where the best evidence was not accessible.

The aforementioned will named two co-executors, Oscar Bois and Leon Queyrouze. -Oscar Bois predeceased Jules Lapene, and Leon Queyrouze died before completing the administration of the succession. The Public Administrator for the Parish of Orleans was appointed Dative Testamentary Executor, and during the ensuing years up until 19S4, the Public Administrator, followed by his successors, administered the Succession of Jules Lapene. At no time was the administration completed nor a final account filed.

In 1954, the then Public Administrator for the Parish of Orleans, W. Sommer Benedict, filed a petition in the Civil District Court for the Parish of Orleans, praying that an inventory be made of property situated in the Parish of Plaquemines, State of Louisiana, belonging to the deceased, Jules Lapene. The inventory revealed that the succession owned approximately 809.51 acres of land in said parish, and after proper proceedings the property was leased for oil, gas, and other minerals, for the sum of $12,142.65.

During 1954, some twenty-one persons, Jean Tardan and others, brought the present suit, alleging that they were the sole legal descendants of Marie Sallenave Bour-det, deceased, who was the sole legal heir of Jean Baptiste Hyppolite Lapene, who was in turn the sole legal heir of Jules Lapene. They alleged that they accepted the Succession of Jules Lapene, “simply, solely, and unconditionally” and prayed that they be recognized as the sole heirs at law of the deceased, Jules Lapene, and sent into possession of his estate in the proper proportions to each. They also asked for the discharge of the Dative Testamentary Executor, alleging that there no longer existed any need for an administration of the estate. Plaintiffs were residents of the Republic of France, the Republic of Mexico, and Madagascar.

Jules Numa Lapene, Jr., brought a suit in November, 1954, alleging that he was the only child of the marriage of Eva Clark and Jules Numa Lapene, and that he was the sole and only surviving descendant of Jules Lapene. He accepted the Succession of Jules Lapene purely, simply, and unconditionally and prayed that he be recognized as the sole heir of the decedent, Jules Lapene, and sent into possession of his estate. He, likewise, prayed for the discharge of the Dative Testamentary Executor upon his rendering an accounting. His suit was consolidated in the trial court with the Tardan, et al., suit.

With respect to Jules Numa Lapene, Jr.’s claim of heirship, the record contains a copy of the marriage record of Eva Clark and Jules Numa Lapene, son of Jules La-pene and Mary Welsh. The marriage was celebrated on September 30, 1885, at the Church of the Immaculate Conception on Baronne Street in the City of New Orleans, Louisiana. This marriage record reads in part:

“The contracting parties, having presented the license of the Honorable Joseph Holt, M. D., Sr., officio Recorder of Births, Marriages, for the Said Parish of Orleans, after the three publications of Banns, no legal impediment being known to exist.”

The record further contains evidence of the solemn baptism of Jules Numa Lapene, Jr., son of Jules Numa Lapene and Eva Clark, on July 18, 1886, at the Church of the Immaculate Conception. This baptismal record is signed by the testator, Jules La-pene, as Godfather.

There is also in the record a statement signed by the Chairman and Ex-Officio Recorder of the Board of Health for the Parish of Orleans, to the effect that an undertaker appeared before him and declared that Jules Numa Lapene, aged 47 years, died at his residence 3726 Bienville Street, New Orleans, Louisiana, on December 1, 1904. This certificate states that Jules Numa Lapene was a native of France, and that he was of the white race. A line is drawn through the word, “White,” and over it is written in print the word, “Negro.” A line is also drawn through the word, “France,” and by its side is written in print the words, “New Orleans, La.” We cannot accept these interlineations as correct. There is no proof in the record as to their authenticity; nor does the record disclose by what authority they were made. They are of a different type of writing— print — whereas, the certificate is written in longhand.

Therefore, from the evidence of record, we accept as correct the fact that Jules Numa Lapene, Jr., is the son of Jules Numa Lapene, deceased, and that Jules Numa La-pene was the natural son acknowledged by Jules Lapene in his will above quoted. Succession of Serres, 136 La. 531, 67 So. 356.

To the petition of Jean Tardan, et al., and that of Jules Numa Lapene, Jr., the Public Administrator filed a plea of thirty years prescription under LSA-Civil Code, Articles 1030 and 3548. He also filed exceptions of vagueness and no cause and no right of action and answered in the form of a general denial.

In its judgment the trial court overruled all exceptions filed by the parties litigant; overruled the plea of prescription filed by the Public Administrator; dismissed certain oppositions filed by the parties plaintiff to a provisional account of the Dative Testamentary Executor, thus approving and homologating said account; recognized Jules Numa Lapene, Jr., as the sole and only legal issue of Jules Numa Lapene, deceased, and as such entitled to an undivided one-eighth or i3%ise of the entire estate ofjhe deceased, Jules Lapene; recognized Jean Baptiste Hyppolite Lapene, deceased, as the sole surviving brother of the deceased, Jules Lapene, and as such the legatee of an undivided seven-eighths of all the property left by Jules Lapene; divided the legacy of Jean Baptiste Hyppolite Lapene among Jean Tardan, et al., in proportions of 3456ths; and ordered the Dative Testamentary Executor to file a final account within fifteen days to the end that after approval and homologation the property and funds in the hands of the Dative Testamentary Executor be delivered and turned over unto the heirs and legatees of the Estate of Jules Lapene, upon the parties complying with the inheritance tax laws of this State.

Tire Public Administrator, now William P. Hagerty, has appealed to this Court from the above judgment. He contends that the evidence submitted by the plaintiff, Jules Numa Lapene, Jr., and by Jean Tardan, et al., is incomplete. He argues that certain French Notorieties submitted as evidence of births and deaths of Jean Baptiste Hyp-polite Lapene and his heirs should not have been accepted by the trial court as evidence of these facts. He urges that the birth certificate of Jules Lapene was not produced, and that Jules Numa Lapene did not file a birth certificate showing that he was the alleged son of Jules Henry La-pene, nor did he file one for Marie Antoinette, called Anna Lapene, supposedly a daughter of the deceased, Jules Lapene.

As stated, supra, we are convinced that all parties plaintiff are the persons they represent themselves to be. None of the plaintiffs have appealed from the judgment of the trial court nor have any of them answered the appeal. Therefore, the only questions presented for our determination are whether sufficient evidence was offered to prove heirship, and whether the evidence offered was admissible. This evidence consisted principally of French Notorieties, wherein declarations were made as to the identity and heirship of the plaintiffs.

Mr. Henry Joseph Denoix de Saint Marc, a lawyer at the Court of Appeal of Bordeaux, France, testified:

“According to the French law, the acts, specifically ‘of notoriety’ is an act passed before a public officer, (Notary for example) wherein it is stated the declarations of persons worthy of belief, who attest a notorious fact, in order to supplement a written act which is impossible of production.”

And when asked, “Is a notarial act the usual method to -enter possession of succession property?”, he responded:

“The act, specifically ‘of notoriety’, habitually serves to establish the degree of the heirs of a deceased person and as a consequence, the existence and extent of their hereditary rights.”

The following questions and answers are excerpts from the testimony of Mr. Henry Joseph Denoix de Saint Marc:

“Q. When there is no conflict between heirs does the Court render a judgment recognizing these heirs? A. As long as there is no conflict between the heirs of a deceased person the Court (in other words the judicial authority) does not have to intervene to recognize the heirs, and to transfer to them the property, (or title) of the goods of the deceased.
“Q. Where there is no contest between conflicting claimants of a succession, is the notarial act accepted as proof of possession and transfer of property ? A. Where there is no conflict between the claimants of an opened succession, it is the act of notoriety which, in default of acts of the Civil States (such as certificates of birth, marriage and death) establish the degree of parentage (relationship) of the claimants of the succession with the deceased, and, as a consequence, the reality and understanding of their rights in the inheritance.
“Q. What law, rules, or decisions if any prescribe the form and contents of an act of notoriety in the Republic of France? A. The act, specifically stated, of notoriety is an act which by custom is very ancient, largely utilized in the ancient French law and of which its use has remained very frequent in our days. It is notably mentioned in Article 20 of the Law of the 25 Ventóse Year XI reorganizing the notariat and in the judgments of the Court of Cas-sation of date 5 August 1815, and 16 January, 1843, making mention of its probative force.
“Q. Are there any laws, statutes or jurisprudence to the effect that a notarial act is not sufficient proof of transfer of title, and if so please give the caption, citation and substance of same? A. There does not exist any law, statute or jurisprudence denying to an act of notoriety the probative force of hereditary right.” (Emphasis ours.)

The above testimony convinces us that the French Notorieties presented in evidence were secondary evidence under our Louisiana Law. However, they were the best evidence that could be produced by counsel for the plaintiffs.

In Thomas v. Thomas, 2 La. 166, we pn>-nounced the following rule, which still exists as the Law of Evidence:

“ * * * The law of evidence, would have a poor claim to the praise justly bestowed on it, if it did not foresee and provide for such a case as this. That rule which is the most universal, namely, that the best evidence the nature of the case will admit, shall be produced, decides this objection; for it is only another form of expression for the idea, that when you lose the higher proof you may offer the next best in your power. The case admits of no better evidence than that which you possess, if the superior proof has been lost without your fault. The rule does not mean that men’s rights are to be sacrificed and their property lost, because they cannot guard against events beyond their control. It only means, that so long as the higher or superior evidence is within your possession, or may be reached by you, you shall give no inferior proof in relation to it. Particular rules which require written proof, always relax themselves to meet absolute necessity, or that necessity which is occasioned by occurrences common among men.”

See, also, Franklin v. First African Baptist Church of New. Orleans, 2 La.App. 698, wherein it was stated:

“The best evidence rule requires that ‘the highest degree of proof of which the case from its nature is susceptible must, if accessible, be produced’. But if the best evidence can not be produced then ‘the next best evidence should be admitted’. * * * ”

In the case of Succession of Marcour, 180 La. 129, 156 So. 198, 203, this Court held that hearsay evidence is admissible to prove descent, relationship, and facts as to birth, marriage, and death, and dates thereof, stating:

“Counsel for appellee objected to the offer in evidence of the undertaker’s record and the newspaper article, on .the ground they were hearsay. But an exception to the rule against the admission of hearsay testimony has been recognized in cases involving pedigree. In such cases hearsay is admissible to prove not only descent and relationship, but also facts as to birth, marriage, and death, and the date when the events occurred. The exception to the general rule is founded on the necessity which arises from the essentially perishable nature of the probative facts and the very limited number of persons who can be assumed to have either interest in or knowledge of ancient facts of such slight general importance and of a nature at once so exact and so trivial. The undertaker’s record was made and the newspaper article was written and published at a time unsuspicious, and we think they were admissible, if for no other purpose, as corroborative of other evidence, both oral and documentary, adduced on the trial of the case.” See, also, in re Gray’s Succession, 201. La. 121, 9 So.2d 481.

We, therefore, conclude that the evidence presented was adequate and sufficient as secondary evidence to prove heirship and was properly admitted by the trial court.

The Public Administrator further contends on appeal that even if the plaintiffs have properly asserted their claims to the Estate of Jules Lapene, their rights have prescribed under Articles 1030 and 3548 of the LSA-Civil Code, since thirty years of inaction have elapsed from the death of the testator. It is urged that the prescription of thirty years has run in favor of the State, and that the land herein involved should escheat to the State of Louisiana.

In Succession of Tyson, 186 La. 516, 172 So. 772, we held that under the clear provisions of the Articles of the Code, it was never intended that a succession should es-cheat to the State, except in default of any heirs. In the instant case there are heirs of the deceased, and they have not pleaded the prescription of Article 1030 against one another. The ruling of Sun Oil Co. v. Tarver, 219 La. 103, 52 So.2d 437, 443, to the effect that:

“ * * * it seems manifest that a trespasser, or one holding land or other succession property without semblance of right or title, as in Generes v. Bowie Lumber Co. [143 La. 811, 79 So. 413] * * * either by conveyances from the succession representatives or heirs or by an acquired prescription, cannot plead the prescription provided for in Article 1030' as the faculty lost by the heir, who fails to accept within thirty years, can only be availed of by the succession or those claiming through it * # * »

was reaffirmed in Lee v. Jones, 224 La. 231, 69 So.2d 26, 31, when we stated:

“The prescription mentioned in the above article [1030] is that of thirty years. In the Sun Oil case, supra, we held that the above prescription could only be plead by coheirs and their transferees who had accepted the succession, or by the succession against a forced heir. This ruling seems to be unpretentious and unassailable.”

There has been no possession of the property in the Public Administrator for the State of Louisiana. He has merely acted as a public officer for the Parish of Orleans, performing those duties designated to his position by law. Under no condition, where there are heirs, could the liberative prescription- provided for by Article 3548 of the LSA-Civil Code accrue to such administration. See, Lee v. Jones, supra; Harang v. Golden Ranch Land & Drainage Co., 143 La. 982, 79 So. 768.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of these proceedings are to be paid by the succession.

      . “The faculty of accepting or renouncing ■ a succession becomes barred by the lapse of time required for the longest prescription of the rights to immovables.” LSA-O.O. Art. 1030.
      “All actions for immovable property, or for an entire estate, as a succession,
      are prescribed by thirty years.” LSA-C.O. Art. 3548.

      . “The succession (successions) of persons who die without heirs, or which are not claimed by those having a right to them, belong to the State.” LSA-C.C. Art. 485.


source: Caselaw Access Project

author: HAMLIN, Justice ad hoc.

license: Public Domain

text:
    233 La. 146
    Oma Fuller TALTON et al. v. Mrs. Mildred Miller TODD et al.
    No. 43008.
    Supreme Court of Louisiana.
    June 10, 1957.
    Campbell & Campbell, by John T. Campbell, Minden, for defendants-appellants.
    Hobbs & Yeates, Minden, for plaintiff-appellee.
   HAMLIN, Justice ad hoc.

Defendants appeal from a judgment of the trial court holding null and void the nuncupative will by public act of their uncle, E. R. Fuller, for the reason that the formalities prescribed by Article 1578 of the LSA-Civil Code were not complied with at the time of its execution.

The testator died on May 4, 1955. His wife predeceased him, and he was survived by no forced heirs. His will, dated September 9, 1949, designated four of his nieces as sole legatees. Plaintiffs are his sister, his brothers, and the children of his deceased brothers.

The trial judge found that two of the attesting witnesses were not present when the will was dictated by the testator. He also found that the notary did not read it back to the testator in the presence of the witnesses. His reasons set forth below contain a clear and explicit analysis of the testimony of the notary and attesting witnesses:

“This is a suit to annul a last will and testament which was written in nuncupa-tive form by public act. The reasons set forth for setting aside the said will are:
“1. That the witnesses to the will were not present when it was written and dictated.
“2. That the witnesses to the will did not see and were not present when the testator signed the same.
“3. That the will was written out of the presence of the witnesses.
“There is no contest over the fact that the will was drawn in proper form and that it was signed by the testator and three attesting witnesses, together with the Notary Public. On the trial of the case Miss Susie Batton, the Notary, and Mr. Travis Taylor and Mrs. Lula Harkness, two of the attesting witnesses, testified. The testimony of these witnesses has been transcribed and is a part of the record of this suit, and it is upon the proper weight and interpretation of this testimony that the decision of this case rests.
“Miss Susie Batton is a very highly respected legal secretary of this Parish; she having been associated with two prominent attorneys of this bar for a period of twenty (20) years or more. Her testimony, in effect, was that all of the formalities of law were complied with in the making of this will.
“Mr. Travis Taylor is likewise a very highly respected citizen of Minden, Louisiana. The Court has been personally acquainted with Mr. Taylor since childhood. He is a very quiet and unassuming person, but enjoys the very highest type of reputation in every respect. His testimony was to the effect that he did not believe the will was perfected in the manner required by law and stated in the said will. Knowing the witness and having observed his demeanor on the stand, there is no doubt in my mind but that he was of the opinion that this will had never been read to him in the presence of the testator and the Notary as stated in the will, and as required by law. It is true, as stated by counsel for the defendants in his brief, that Mr. Taylor did not positively testify that the will had not been read to the witnesses, etc. However, this Court is well aware of the fact that Mr. Taylor is a business man and that he was an unwilling witness, to the extent that it was very unpleasant for him to testify contrary to Miss Susie Batton, his business neighbor and acquaintance for many years. However, I interpreted Mr. Taylor’s testimony to the effect that if the requirements in the will had been fulfilled, he certainly would recall them.
“Mrs. Lula Harkness, likewise, testified that she did not recall the will having been perfected according to its terms. It was obvious, from watching Mrs. Harkness on the witness stand, that she likewise was doing everything possible in order not to contradict Miss Batton’s testimony, if such were possible. However, there was no doubt in my mind, at the conclusion of her testimony, that this will had not been drawn and dictated in her presence.
“It is not a pleasant duty for this Court to set aside a will, after having been drawn by a respected citizen of this Parish. However, I feel it is the primary duty of the trial judge to set forth his conclusions of the fact as he has seen them and heard them from the witnesses during the trial of the case. It would he easy for me to understand how both Mr. Taylor and Mrs. Harkness could forget or not be certain of their mere signature to an instrument, such as a deed, mortgage, affidavit, etc., but I believe they would certainly have recalled if they had not been present during the dictation, reading, etc. of a nun-cupative will.
“For the reasons shown herein, it is my opinion that the plaintiffs should have judgment declaring the said will to be null and void.”

Were this matter strictly one of fact, we would adhere to the rule that the trial judge, having seen and heard the witnesses, should not be disturbed in his findings of fact unless manifestly erroneous. However, we also have a question of law presented for our determination.

In Succession of Beattie, 163 La. 831, 112 So. 802, 805, we held:

“Testimony of subscribing witnesses which is adduced on the contest of the will and which, in effect, impeaches the solemn statements contained in the instrument which by their signatures they have attested as correct, is not in itself sufficient to overcome the presumption of validity arising from their presence and signatures and the official certificate of a public officer fortified by his oath. Their testimony must he corroborated. by independent facts or rea> sonable inferences. * * * ” (Emphasis ours.)

This doctrine was subsequently assailed in Bernard v. Francez, 166 La. 487, 117 So. 565, 567, but the Court reaffirmed its holding, stating:

“Counsel criticize the doctrine announced in the Beattie case as being without precedent, and they declare that such a principle is fraught with: latent dangers of fraud on the rights of a testator to dispose of his property.. But there would be room for greater fraud on the right of the testator to' dispose of his property and on the rights of the legatees if the principle contended for by counsel should be recognized — that is, to permit subscribing witnesses to deny their own solemn act and to break down the solemn authentic act of a sworn officer.”

In the instant case, both Mr. Taylor and Mrs. Harkness admit that their signatures as subscribing witnesses to the will are authentic. However, Mr. Taylor stated that he did not remember signing the will and did not believe that the will was perfected in the manner required by law, as stated therein, and Mrs. Harkness declared that she did not recall the will having been perfected according to its terms.

We do not believe that their testimony, which impeaches the solemn declarations contained in the nuncupative will herein involved, is legally sufficient to overcome the presumptinon of validity which the law accords to so solemn an act. Succession of Beattie, supra.

“The recitals of a nuncupative will by authentic act must be considered as proved until disproved.” Succession of Block, 131 La. 101, 59 So. 29, 30; Renfrew v. McCain, 185 La. 135, 168 So. 753; Succession of Prej-ean, 224 La. 921, 71 So.2d 328.

Here, we do not find that the negative testimony of the two subscribing witnesses is supported by sufficient independent facts or reasonable inferences. Their testimony must give way to the recitals of the will itself — an instrument executed in notarial form, which states that it was drawn and executed in the presence of the witnesses and signed by them as witnesses. Sue-cession of Koerkel, 226 La. 560, 76 So.2d 730.

“It is fundamental in our law that the burden of proof rests upon the one who attacks the validity of a will, probated in accordance with law, to prove its invalidity. Applying this rule, we cannot say that appellants have substantially or convincingly discharged this, duty.” Stephens v. Adger, 227 La. 387, 79 So.2d 491, 494. See, also, Succession of Prejean, supra.

Although the notary admits that she wrote the preamble to the will before the testator arrived for its dictation, we do not believe that this would have any effect upon the validity of the instant will. The last paragraphs of the will incorporate and affirm what was stated in its preamble, and the will likewise states that it was read in its entirety to the testator in the presence of the witnesses. There was substantial compliance with the formalities required. Succession of Prejean, supra; Stephens v. Adger, supra.

Further alleging that appellants had received some of the movables and cash left by the deceased, appellees prayed for a judgment against appellants ordering the return of said movables and cash. In dismissing these demands, the trial judge stated that appellants were absentees and not amenable to personal judgment herein. His judgment dismissing these demands will be affirmed; particularly, in view of our conclusion that the will is valid.

For the reasons assigned, the judgment of the trial court decreeing the will of E. R. Fuller to be null, void, and of no effect, and annulling and avoiding the probate thereof in proceedings bearing No. 2566 on the Probate Docket of the Twenty-Sixth Judicial District Court, styled “Succession of E. R. Fuller,” is reversed and set aside. The judgment dismissing all other demands of plaintiffs is affirmed. All costs are to be paid by plaintiffs.

      . The nuncupative testaments by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.
      “This testament must be dictated by the testator, and written by the notary as it is dictated.
      “It must then be read to the testator in presence of the witnesses. “Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.”


text:
    233 La. 155
    Cary C. CATLETT et al. v. Mrs. Lorena E. CATLETT et al.
    No. 42878.
    Supreme Court of Louisiana.
    June 10, 1957.
    Hayes, Harkey & Smith, Monroe, for plaintiffs-appellants.
    Joseph S. Guerriero, Monroe, for defendants-appellees.
   HAMLIN, Justice ad hoc.

Plaintiffs appealed to this Court from a judgment dismissing plaintiffs’ suit, ordering a cancellation of a lis pendens, and sustaining exceptions of no cause and no right of action filed by the defendants.

After the appeal was properly filed, counsel for both plaintiffs and defendants filed a joint motion in this Court, in which they prayed that the appeal be transferred to the Court of Appeal, Second Circuit. They alleged that the requirements of Article VII, sec. 10, Louisiana Constitution of 1921, LSA, were not met, in that the jurisdictional amount (over $2,000) was not established.

Plaintiffs sued to have set aside and declared null and void, as simulations, two transfers of real property to the defendant, Clarence Wassan. Alternatively, they prayed that should the court find that the transactions were not simulations, then that it class them as disguised donations which should be annulled and set aside or reduced to the disposable portion. They alleged that each of the two properties involved is worth more than $2,000, but there is no proof in the record as to their true value.

Plaintiffs further prayed that the defendants, their step-mother and step-brother, be ordered to account for certain movables alleged to have belonged to their father, individually, or, to the community existing between their father and the defendant, Mrs. Lorena E. Catlett. Alternatively, they prayed that should the court find that the movables were donations to the defendants, then that they be reduced to the disposable portion. They alleged that the exact amount and description of these movables were unknown to them.

Counsel are correct in their statement to the effect that there is no affirmative showing that the amount in controversy exceeds $2,000.

“ * * * before jurisdiction on the basis of the amount in contest or dispute will be entertained, the record in each case must affirmatively show what the amount is and also, that it is the amount in dispute at the time the case is; submitted to the trial court that determines jurisdiction. See Kennedy v. Perry Timber Co., 217 La. 401, 46 So.2d 312 and cited cases.” Beene v. Pardue, 223 La. 417, 65 So.2d 897. See also, Hunter v. Hussey, Commissioner of Conservation, 229 La. 151, 85 So.2d 246, and authorities therein cited.
“In determining the question of jurisdiction this Court is not bound to accept the allegations of the petition but will look into the record to ascertain the real amount in dispute. Allegations of jurisdictional facts are not the exclusive test of jurisdiction. Wilkins v. Gantt, 32 La.Ann. 929; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Spearing v. Whitney-Central Nat. Bank, 129 La. 607, 56 So. 548; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817.” Harris v. Barron, 231 La. 1076, 93 So.2d 663, 664.

This appeal properly lies to the appropriate Court of Appeal, as that court is vested with general appellate jurisdiction of all cases of which the district courts of its circuit have exclusive original jurisdiction. Article VII, sec. 29, Louisiana Constitution of 1921; Grace v. Boggs, 220 La. 22, 55 So.2d 768; Haney v. Dunn, 231 La. 988, 93 So.2d 532.

Accordingly by virtue of the authority vested in this Court by LSA-Revised Statutes 13:4441, 13:4442, this case is ordered transferred to the Court of Appeal, Second Circuit. The transfer is to be made within thirty days after this decree becomes final ; otherwise, the appeal is to be dismissed. Appellants are to pay the costs of the appeal in this court; all other costs are to await the final disposition of the case.


author: GLADNEY, Judge.

text:
    WASHINGTON FIRE & MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. J. D. BRADFORD, Defendant-Appellee.
    No. 8671.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Roy M. Fish, Springhill, for appellant.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellee.
   GLADNEY, Judge.

This suit is brought on a subrogation claim by the insurer of John W. Britt, for property damages sustained by Britt’s automobile. On October 19, 1954, Britt was driving north along the Bossier City-Plain Dealing highway in Bossier Parish, at about 10:00 o’clock at night, with normal atmospheric conditions, when his vehicle struck an automobile owned and operated by J. D. Bradford, which was proceeding ahead in the same direction and attempting to make a left turn into a private driveway. Following a trial on the merits of the case the judge a quo sustained a special plea of contributory negligence filed by the defendant and rejected the plaintiff’s demands.

The issues to be resolved relate first to the question of whether or not the contributory negligence of Britt is established, and second, if such contributory negligence is not established, then whether Bradford was guilty of actionable negligence.

The defendant charges contributory negligence of Britt due to his fault and neglect in that he failed to observe the hand signal given by Bradford for a left turn; in failing to see or respond to the flashing taillights of respondent’s automobile; in failing to timely apply his brakes and keep his vehicle under proper control; and finally, in driving at an excessive rate of speed under the circumstances.

Britt denied seeing the hand signal which Bradford says he gave for a sustained period of time prior to attempting to execute a left turn. Britt further testified he followed Bradford’s car from Bossier City to the scene of the accident, which was about four miles to the north, maintaining a distance of 400 to 500 yards between the two cars; that while traveling in such manner -he observed the stop lights on the lead car and they “showed Stop”, whereupon he turned to the left lane in order to pass; and that when he was within ISO feet, Bradford turned out in the left lane and he, Britt, turned his car to the right to try to avoid a collision, but the left rear fender of his car hung the left rear bumper of Bradford’s car. Britt stated that before he undertook to pass Bradford he was traveling at a speed of 55 miles per hour and he did not give any horn signal of his intention of passing the lead automobile. He also testified he believed Bradford was engaged in the act of making a turn to the right and consequently the left lane was safe for passing.

We find the testimony of Britt is ample to sustain the special plea of contributory negligence. It is expressly provided in LSA-R.S. 32:234, subd. A of the Motor Vehicle Regulatory Statute the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway. Furthermore, the same Statute, LSA-R.S. 32:233, subd. B, .imposes the duty upon the driver of an overtaking vehicle to give audible and sufficient warning of his intention before overtaking, passing or attempting to pass a vehicle proceeding in the same direction. In Burns v. Evans Cooperage Company, Inc., 1945, 208 La. 406, 23 So.2d 165, at page 169, the court had under consideration the negligence of plaintiff, who damaged his automobile while trying to avoid collision with a truck when it slowed down preparatory to making a left turn, and appraised the responsibility of the following automobile, saying:

“It is the duty of the driver operating an automobile, upon approaching another automobile from the rear while both cars are travelling in the same direction, to exercise a great deal of care. He must look out for the person ahead, realizing that that person is engaged in handling a high-powered machine requiring constant attention and that his lookout is forward and not backward. The driver of the rear car must keep a safe distance behind the front car and must have his machine under such control as to avoid injury to the car ahead or to his own car so long as the driver of the front car is driving in accordance with his rights. The evidence in this case shows that plaintiff was not operating his car in accordance with this rule. He was driving his automobile at an excessive rate of speed, paying little or no attention to the surrounding facts and circumstances, with the result that he suddenly came upon a truck that was slowing down, causing plaintiff to turn to the left in order to avoid a rear-end collision. In other words, the record in this case discloses that the accident was caused by plaintiff’s negligence and not by the negligence of defendants’ truck driver.”

This court in Callia v. Rambin, La.App. 1955, 78 So.2d 44, observed that the driver of the following vehicle did not sound his horn to give warning of his anticipated passing and such failure to observe this action, coupled with his failure to take notice of the apparent intention of the driver of the preceding vehicle to either stop or turn must be considered to be negligence of a character and degree which contributed to the accident and which, therefore, barred recovery.

Britt frankly states he timely observed the tail-lights of the defendant vehicle blinking and clearly indicating that either the Bradford vehicle was about to stop or turn either to the left or right. This, together with the slowing of defendant’s car, should have been sufficient and adequate to warn Britt to slow his automobile and bring it under full control, but he did not take any such measures of precaution, but continued at his same speed of 55 miles per hour because, as he stated, he believed that the defendant would make a turn to the right. In so continuing, Britt neither gave a signal nor other warning of his intention of passing the vehicle which obviously was going to make some kind of maneuver. These acts of omission and commission constitute negligence, in our opinion, and are entirely sufficient to support the judgment rendered by the trial court, based on the contributory negligence of Britt.

For the reasons hereinabove stated, Britt was contributorily negligent, and, therefore, plaintiff’s subrogee is barred from recovery. This finding precludes us from examining the question of whether or not Bradford was guilty of negligence.

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


author: AYRES, Judge.

text:
    Mrs. Ethel Cox SMITH, Plaintiff-Appellee, v. Richard SMITH, Jr., Defendant-Appellant.
    No. 8691.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Russell E. Gahagan, Natchitoches, for appellant.
    Watson & Williams, Natchitoches, for appellee.
   AYRES, Judge.

By this action plaintiff seeks to recover damages for physical and mental injuries,, pain and suffering, resulting from an alleged assault and battery committed upon-her by defendant. From a judgment in her favor in the sum of $500 defendant has appealed.

The facts may be briefly stated. On the late afternoon of Sunday, July 15, 1956,. plaintiff, accompanied by her five year old son, was driving her husband’s pick-up. truck in the Town of Campti, Louisiana., Defendant, driving another truck, overtook, plaintiff and began “bumping” her truck' from the rear, which acts he continued for a distance of approximately yi, mile.' As. he came alongside plaintiff’s truck, he forced her to stop on the side of the road. Defendant, after getting out of his truck,. proceeded to severely beat plaintiff, who had also stepped out of her truck.

Plaintiff suffered a number of assorted bruises, which fortunately were only temporary in character, but as a result of which she was confined to her bed for a period of three days after which she was ■examined by Dr. W. H. Pierson of Natch-itoches, Louisiana, whose examination revealed areas of ecchymosis, or livid spots ■on the skin, of the right shoulder, left forearm and both knees. The doctor also found tenderness on palpation of the lower back with radiation of pain to adjacent areas, all of which he concluded were produced in the main, from the beating inflicted by defendant upon plaintiff.

The record discloses no reason or excuse or adequate explanation for defendant’s attack upon plaintiff. His contention that defendant had enticed his nineteen year old sister away from his mother’s home, the father and mother being separated, and that his purpose was merely to talk to plaintiff concerning that matter, is not supported by the record. The assault and battery was most unjustified.

The only issue meriting serious consideration is the quantum of the award. Defendant contends that the award is excessive and should be reduced. Although there is no standard or rule of law from which the amount of recovery in actions of this character can be determined, and while each case necessarily rests upon its own particular facts, under the facts as established in the record, we do not think the award is excessive.

Plaintiff, however, urges in brief that the award is inadequate and cites these cases in support of her contention: Cavalier v. Original Club Forest, Inc., La.App. 1952, 59 So.2d 489; Schwandt v. Nunez, La.App.1954, 71 So.2d 583; Knott v. Litton, La.App.1955, 81 So.2d 124; Durr v. Smith, La.App. 1956, 90 So,2d 147 and McMahon v. McDonald, La.App.1956, 90 So. 2d 692. We are, however, precluded from a consideration of an increase of the award, as plaintiff neither appealed from the judgment nor answered defendant’s appeal. Nevertheless, considering the injuries which were sustained by plaintiff, which were no doubt painful, we think the award made by the trial court does substantial justice between the parties.

Accordingly the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: HARDY, Judge.

text:
    Claude Lee WOOD, Plaintiff-Appellant, v. Mrs. Mattie Fike POWELL et al., Defendants-Appellees.
    No. 8672.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.

      Watson & Williams, Natchitoches, for appellant.
    Gahagan & Gahagan, Natchitoches, for appellees.
   HARDY, Judge.

This is a suit for the reformation and correction of a deed of conveyance and, alternatively, the recovery of the value of improvements to the property in dispute. Named as defendants are Mrs. Mattie Fike Powell, plaintiff’s vendor, and two of her children, John A. Patrick and Mrs. Doris Powell Driever, donees of interests in the disputed tract of land under acts of donation executed subsequent to the conveyance to plaintiff.

Defendants filed exceptions of no cause or right of action, which were referred to the merits, whereupon defendants filed answer, generally denying the allegations of plaintiff’s petition and further praying for a judgment in the nature of damages for the alleged destruction of tenant houses and grafted pecan trees on the property. After trial on the merits there was judgment in favor of defendants rejecting plaintiff’s demands, from which plaintiff has appealed.

Despite some slight conflicts in testimony, the material facts pertinent to a consideration of this case have been preponderantly established. Sometime during the latter part of 1949 the defendant, Mrs. Mattie Fike Powell, widow of George Powell, deceased, expressed to one John Ducote her desire to sell a certain tract of land bequeathed to her in the will of her deceased husband, which was known as the George Powell Place or Plantation. Du-cote, after ineffective efforts to interest another party, contacted plaintiff, Claude Lee Wood, and suggested that he might be interested in purchasing the property, inasmuch as it adjoined lands owned by Wood. After some consideration of the matter Wood called on Mrs. Powell at her home near Hanna in Red River Parish, and made her an offer of $3,500 in cash for the property, which embraced some 210 acres of land, more or less. • Mrs. Powell immediately accepted the offer and accompanied Wood to Natchitoches where they first called at the offices of the Clerk and the Assessor in the effort to obtain an accurate description of the property. Failing in this attempt the parties, Wood and Mrs. Powell, then proceeded to the office of Mr. B. B. Breazeale, an attorney at law, where they advised him of their general agreement with reference to the sale and purchase of the property. Mr. Breazeale suggested the advisability of procuring a survey of the land and thereupon Mrs. Powell and Wood immediately contacted Mr. Gaiennie Hy-ams, a well known surveyor of Natchi-toches Parish. Mr. Hyams advised the parties that some years previously he had platted the property with other lands, which plat appears to have been used as the basis for a partition between Walter and George Powell. The three parties went to Mr. Hyams' home, where he procured the plat, and then returned to the office of Mr. Breazeale, where the plat was examined.

During all of the above transactions, according to the testimony of the plaintiff Wood, of Ducote and of the attorney, Breazeale, all parties were acting under the impression that all of the tract of land under consideration was located in Natch-itoches Parish. There is no question as to the fact that the property constituted a well defined body of land which was located within well known and defined boundaries, namely, Squirrel Bayou on the south, Bayou Pierre on the east and north, and Deep Bayou on the west. The testimony of the witnesses named, by an overwhelming preponderance, establishes the identity of the tract of land which was clearly within the intention of Mrs. Powell to sell and Mr. Wood to purchase.

The attorney, Breazeale, requested time to make a check of the records in order to work out the description of the property. Some time the following week Mrs. Powell and Wood returned to Mr. Breazeale’s office where the transaction was completed by the signing of the deed. The property, as described in the act of sale prepared by Mr. Breazeale, described the land conveyed as follows:

“The North Half of the Northeast Quarter, Southwest Quarter of the Northeast Quarter, less twenty (20) acres sold to M. M. Powell lying West of Deep Bayou, Lot One (1) of Section Twenty-three (23), Lot One (1) of Section Thirteen (13), Lot in Section Twenty-four (24), being all of that l%nd in said Section West of Bayou Pierre, Fractional Northwest Quarter of Southeast Quarter, and Lot Seven (?) of South Half of Southeast Quarter of Section Twenty-three (23), all in Township Eleven (11) North, Range Ten (10) West, and being a portion of tile same property acquired by vendor under the last will and testament of her deceased husband as shown by judgment recorded in Conveyance Book 203, page 190 of the Conveyance Records of Natchitoches Parish, Louisiana.”

The deed was duly recorded in the records of Natchitoches Parish and plaintiff entered into possession of the property and later began extensive clearing operations for the purpose of preparing the land for use as a pasture.

By act of donation dated February 25, 1953, Mrs. Mattie Fike Powell conveyed to her son by a .former marriage, John A. Patrick, a certain tract of land described as being:

“All that portion of Section 14, East of Deep Bayou and South of Bayou Pierre, containing 50 acres, more or less * * * in Township 11 North, Range 10 West, De Soto Parish, Louisiana.”

On the same date, by act of donation, Mrs. Mattie Fike Powell conveyed to her daughter, Mrs. Doris Powell Driever, who was the sole child of her union with George Powell, deceased, an undivided one-third interest in and to the oil, gas and other minerals in and under the above described property, together with the same proportionate interest in other lands.

Both of the above donations were accepted at the time by the respective donees.

The tract of land, as described in the above act, of donation, is the property which is here in dispute and which plaintiff seeks to have incorporated in the deed from Mrs. Powell by reformation thereof, on the ground that such was the clear intention of the parties at the time of the execution of said deed, and that the omission of the tract described was an inadvertent error not only on the part of the parties themselves but through the mistake of both the surveyor and the attorney, the former in failing to designate the location of the tract as being in De Soto Parish, and the latter in failing to include the description of the De Soto tract in the deed which he prepared for execution by the parties thereto.

The defendant, Mrs. Powell, contends that she intended to sell only that part of the property which was located in Natchi-toches Parish, and, as a consequence, there was no error in the preparation of the deed of conveyance to Wood. This contention must be rejected for it is evident from the testimony of Mrs. Powell that she did not know at the time that this small tract of land, which now appears to contain 29.44 acres of land and not SO acres of land, was located in De Soto Parish. Mrs. Powell’s testimony as to her knowledge of the location of the property discloses that she was only vaguely familiar with the location and that she was unaware of the effect of the location of the parish lines upon the description of the property. Additionally, the record discloses the very convincing testimony of the disinterested witnesses, Ducote and Breazeale, to the effect that Mrs. Powell intended to sell the “George Powell land” located south and west of Bayou Pierre. All parties who had any connection with the transaction were under the impression that all the property was located in Natchitoches Parish and the consequent omission in the description as formulated by Mr. Breazeale is not only easily explained but readily understood.

Reference to the plats of survey which have been filed in evidence clearly demonstrate the fact that the tract of land which is involved in this suit is an integral portion of what was known as the George Powell Lands or Plantation and was not separated by any boundaries, natural or artificial, from the remainder of the tract which was properly described in the deed by which plaintiff acquired ownership. It would appear most unreasonable to assume, in the absence of most positive and convincing •evidence, that there was intention on the part of the vendor, Mrs. Powell, to except this small tract of approximately 30 acres from the larger body of land, all of which was identified as being located within the boundaries of the three bayous as herein-above described. The fact that this particular tract was located in De Soto Parish has no bearing whatsoever upon what we regard as the well established intention of the parties, all of whom unquestionably considered the entire tract to be located in Natchitoches Parish, an error which was confirmed and perpetuated by both an able surveyor and an experienced attorney at law.

As above noted, the plaintiff took possession of the disputed tract of land and began clearing operations. It was not until some time after the acts of donation by Mrs. Powell to her son and daughter that plaintiff was informed of the fact that the 29 acre tract had not been included in his deed.

Just when Mrs. Powell, her son, John A. Patrick, and her daughter, Mrs. Driever, became acquainted with the fact that the land in De Soto Parish had not been included in the-deed to Wood is not disclosed by the record. The attorneys who appear to have represented Mrs. Powell and her son and daughter, and who first gave notice to plaintiff of the conflict in claims of ownership, by formal motion, withdrew from this case prior to trial as attorneys for the defendant Patrick.

Our study of the record has convinced us, beyond the shadow of a doubt, that it was the clear intention of Mrs. Powell to sell, and of plaintiff, Wood, to buy, the tract of land which was inadvertently omitted from the description of the property in the deed prepared by Mr. Breazeale. This being so, it follows that plaintiff would be entitled, as between himself and his vendor, Mrs. Powell, to the reformation for which he prays in this proceeding.

However, the rights of the respective parties have been somewhat complicated by the acts of donation executed by Mrs. Powell in favor of her son, Patrick, and her daughter, Mrs. Driever, who assert the protection accorded third persons under the law of registry as provided by Article 2264 of the LSA-Civil Code, which reads as follows:

“No notarial act concerning immovable property shall have any effect against third persons, until the same shall have been deposited in the office of the parish recorder or register of conveyances of the parish where such immovable property is situated.”

Article 2266 of the LSA-Civil Code amplifies the provisions of Article 2264 by declaring that unrecorded sales affecting immovable property shall be considered null except as between the parties thereto, and that third persons are affected only from and after the time of recordation. It was upon the provisions of this Article 2266 that the Supreme Court predicated its holding in the famous case of McDuffie v. Walker, 125 La. 152, 51 So. 100, which is relied upon by counsel for defendants and which was cited by our learned brother of the district court in his written opinion as authority for his judgment in favor of defendants.

We are constrained to conclude that the principle of the McDuffie case has been misapplied under the facts of the instant matter. The codal provisions, as interpreted by the court in the McDuffie case, are clearly intended to protect third party purchasers who rely upon the public records. Certain exceptions to the McDuffie rule have been recognized by our courts. (Cf. discussion in XII Louisiana Law Review, 511).

In the instant case there is not the slightest showing that the gratuitous donees, Patrick and Mrs. Driever, relied upon any records, public or otherwise. The donations appear to have been conceived by the mother, Mrs. Powell, and there is not the slightest evidence that the descriptions were derived from or affected by the public records. Strictly speaking, we question the status of the defendants, Patrick and Mrs. Driever, as bona fide “purchasers”, and, in our opinion, these parties, as donees, can* claim no greater rights than their donor.

A donation falls into an entirely different category from an act of sale. So long as the donee retains ownership of the property the donation is susceptible of revocation by the donor. LSA-Civil Code, Article 1559' et seq. We think it must reasonably be-concluded that a donee is not entitled to-the benefit of the protection accorded bona fide purchasers for a valuable consideration.

In their brief counsel for defendants have quoted the provisions of LSA-R.S.. 9:2721, 272Z, defining “third parties”. Unquestionably these statutory provisions were-intended for the protection of purchasers, of mineral leases and interests, and the reasons for the adoption thereof by the legislature are clearly set forth in XI Louisiana Law Review, 32.

For the reasons assigned the judgment appealed from is annulled, set aside and", reversed and there is now judgment in favor of plaintiff, Claude Lee Wood, and against, the defendants, Mrs. Mattie Fike Powell, John A. Patrick and Mrs. Doris Powell-Driever, reforming the description of the property in that certain act of sale of date December 9, 1949, from Mrs. Mattie Fike Powell, as vendor, to Claude Lee Wood, as. vendee, by adding the following description:

“All that portion of Section Fourteen (14), Township Eleven (11) North, Range Ten (10) West, east of Deep Bayou and South o.f Bayou Pierre, containing 29.44 acres, more or less, in De Soto Parish, Louisiana.”

There is further judgment recognizing plaintiff, Claude Lee Wood, as the owner of the above described tract and confirming said Claude Lee Wood in the ownership, and possession thereof.


text:
    MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8521.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Rehearing Denied June 28, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.

      Gist, Murchison &1 Gist, DeWitt T. Methvin, Jr., Alexandria, for appellant.
    Stafford & Pitts, Alexandria, for ap-pellees.
   GLADNEY, Judge.

This action is one sounding in tort and arises from a fatal accident which cost the life of Ellis Hickman, an employee of the Department of Highways of the State of Louisiana. Suit was instituted by Maryland Casualty Company which became legally subrogated under LSA-R.S. 23:1101, 23:1161, for workmen’s compensation payments to the widow and heirs of the employee. Made defendants are Murray Hicks, the driver of the automobile which caused the death of Hickman, and his liability insurance carrier, Allstate Insurance Company. Following a trial on the merits, the district court rejected plaintiff’s demands and it has appealed, seeking a review of the issues which developed from charges of negligence and counter negligence imputed to Hicks and the deceased.

The accident took place on State Highway No. 21, four miles, west of Hineston in Rapides Parish, Louisiana, at about 7:00 o’clock on the morning of September 13, 1954, at which time the atmosphere was clear and dry. The highway at that point was level and straight for a distance of one-half mile or more on either side and was paved with an eighteen-foot asphalt slab. Work had been in progress on the shoulders of the road and a number of gravel trucks of the Department of Highways were engaged in hauling and unloading gravel and dirt. On this particular day work had not yet commenced except to the extent that several of the highway trucks were engaged in placing warning signs and preparing to commence hauling. One of these trucks, driven by Earl B. Deville, had preceded the others and gone westerly about one-half mile where De-ville erected a sign reading: “Slow, Road Repairs Ahead.” A truck driven by the deceased arrived at the point of the accident and stopped on the north shoulder of the road. A third truck operated by Otis Guree temporarily stopped behind Hickman’s truck, then pulled to the left and proceeded westerly. Still another truck, being driven by Thomas L. Miller, was more than three hundred feet to the east of and approaching the locus of the impending accident. With these motor vehicles approximately in the position so designated, Ellis Hickman opened the door of his truck, stepped out and proceeded to cross to the opposite or south side of the highway for the purpose of placing a sign similar to the one referred to above. After he had taken about four steps and crossed the center of the asphalt strip, he was struck by a Pontiac automobile driven by Murray Hicks and was instantly killed.

Otis Guree and Thomas L. Miller, drivers of the trucks as above described, testified that they witnessed the collision. Guree said he had passed the automobile driven by Hicks and was about two or three hundred feet west of it when, through his rear view mirror, he observed it strike Hickman. He expressed the opinion that the automobile driven by Hicks was traveling at a speed of eighty to eighty-five miles per hour. Miller, likewise testified he observed the impact, at which time he was about three hundred feet to the east thereof. He testified he saw the deceased when he stepped from his truck and started on a trot across the pavement. Asked what Hickman did when he got out of his truck, Miller answered: “Well, he just started in a trot across the road.” Other eyewitnesses were Henry Harvey Judkins, Willie Bailey, Jr., and Murray Hicks. Judkins and Bailey were seated on the front seat with the driver of the automobile. Bailey stated, however, he did not see Hickman until after Hicks had effectively applied his brakes. Judkins testified he saw the deceased step from the running board and run across the highway. None of the passengers seated on the rear seat of the automobile was paying attention ahead and their testimony related only to the speed at which Hicks was driving and their observation concerning the sign placed on the highway by Deville. All of the passengers in Hicks’ car who testified, stated the driver of the automobile was not driving more than fifty-five mile's per hour. None of them observed the sign placed by Deville, nor could any of these witnesses estimate the distance from Hickman when they first observed him in the highway.

Murray Hicks testified he was traveling from fifty to fifty-five miles per hour when he drove over a hill about one-half mile west of the scene of the accident, and at that time observed two trucks parked on the north side of the highway, whereupon he immediately released his accelerator pedal and slowed to a speed of forty to forty-five miles per hour. He said he saw Hickman when he opened the door of his truck but did not again see him until he was in the middle of the highway just over the center line in the south, or Hicks’ proper lane of travel; that he immediately applied his brakes and exerted every effort to control his car. At the time he first observed Hickman out of the truck, he was running across the road. Hicks testified further that he did not blow his horn, giving as his reason for not doing so he did not have time. He also stated he did not observe any road sign.

Two State troopers, Clifford G. Wilson and James E. Ray, who arrived promptly upon the scene, found the Hicks automobile had skidded a measured distance of ninety-seven feet to the point of its impact with the deceased, and then skidded a further distance of one hundred ten feet down the highwa}'- where it came to rest crossways on the pavement.

Based upon this evidence, which is not: refuted, the trial judge concluded the Hicks-vehicle was traveling in excess of sixty miles per hour at the time the driver actually applied his brakes. It is clearly-demonstrated, we think, that Hicks was-traveling at an. excesssive rate of speed and, therefore, was guilty of negligence..

The defendants, pleading alternatively, strongly contend the deceased was contribu-torily negligent in failing to observe if the-highway could be safely crossed. Plaintiff, anticipating this issue, invokes the last clear chance doctrine. Therefore, as the . primary negligence of Hicks is plainly indicated two principal issues are presented for solution, and these are, first, as to the contributory negligence of the deceased,, and second, but only if this question is answered in the affirmative, whether the last clear chance doctrine is' applicable under the facts herein involved.

There is no conflict in the testimony as to the manner in which the deceased left his place of safety in the truck and proceeded hurriedly to cross from the truck to the opposite shoulder of the road. It is clearly shown Hickman got out of the left door of his truck and without looking in either direction for oncoming traffic, attempted to cross at a fast walk, or, as described by Miller “at a trot” toward the sign which he was intending to place in an upright manner. The point of impact occurred within a few feet of the center and in the south iane of the highway.

The physical facts as so established herein, show the Hicks car because of its speed at the time the deceased stepped from his truck, could not have been, and actually it was not, brought to a stop within two hundred feet. Further, the record reflects Hickman took only about four steps before he was struck, after which the automobile skidded one hundred ten feet. Thus, it seems certain Hickman was in peril from the moment he stepped upon the asphalt strip, and this being true, surely he would mot have attempted to place himself in the path of the oncoming vehicle had he made proper observation. His failure in this respect constituted the plainest sort of negli.gence. Fuqua v. Martin, La.App.1949, 40 'So.2d 404; Flowers v. Morris, La.App. 1950, 43 So.2d 917; Wall v. Great American Indemnity Company, La.App. 1950, 46 So.2d 655; Martin v. American Heating & Plumbing Company, La.App.1951, .52 So. 93; Bagala v. Kimble, La.App. 1952, 62 So.2d 523, rehearing denied 1953.

Counsel for appelllant contends, "however, that since Hickman was engaged in the performance of duties requiring him 4o work on the highway, he was not required to exercise as high a degree of precaution as is required of an ordinary pedestrian, and that under the circumstances in this case his actions were reasonable. Application of this doctrine was urged in Ellis v. Whitmeyer, La.App.1938, 183 So. 77, and recognized as valid by this court, hut there it was found under the particular ■circumstances of the case, it was unnecessary to resort to the rule. The decision rested solely on the negligence of the defendant, plaintiff being free from fault. Where the facts disclose a worker is busy in the street or highway, under circumstances which show that he is not watchful and is relying on the protection of signs, barricades, or flagmen, the motorist will be held to a higher and the worker •to a lesser degree of care.

But it is obvious that when the worker is not engaged in some activity which diverts his attention from vehicular traffic, but is merely in the act of crossing ■or walking along the street or highway, he should be expected to exercise the same care for his own safety as that required ■of an ordinary pedestrian. In Andrus v. S. J. Boudreaux & Son, La.App. 1935, 158 So. 679 and in Bailey v. Reggie, La. App.1945, 22 So.2d 698, the foreman of .a road crew was held to be guiltv of contributory negligence as a matter of law. In Bailey v. Reggie the court said that in cases of this kind it is impossible to relieve a person of normal intelligence and possessing the normal senses of sight and hearing, of any negligence when he suddenly steps on the highway without taking the usual and simple precaution of looking to see if there is any traffic coming. In Ellis v. Whitmeyer, supra, at the point of the accident, the Highway Commission had closed the south half of the highway to traffic by parking a large compressor truck on that side of the road and was rerouting traffic in both directions over the north side of the route. Passage was further restricted by danger signals on each side of the highway, virtually creating what might be termed a safety zone for several hundred feet on each side of the bridge. At the time Ellis was knocked down by the automobile he had not entered the north half of the highway where Whitmeyer should have operated his car at a cautious rate of speed. . Thus, under these stated facts it very well might have been said Ellis was relieved of a duty to be as carefully observant as would be required of an ordinary pedestrian, and, for this reason extra means had been taken to protect the workmen from danger and to impress upon travelers the presence of men continuously in danger. The finding of the court was that Ellis was not contributorily negligent, but the negligence of Whitmeyer was the sole proximate cause of the accident.

The facts evidenced herein are entirely different from those presented in Ellis v. Whitmeyer. In the instant case no safety zone was created, there was no person directing traffic and actual work had not begun on the shoulders of the highway by employees of the Department of Highways. Hickman was, in fact, the driver of a truck and although it was his duty to put the sign in place, which he was about to do at the time of his death, this was the only act which required him to get out of his truck. There was nothing to relieve him of his obligation to be observant of any approaching traffic. i It is unquestionable therefore, that the deceased’s act of attempting to cross the highway at the time he did, was an act of negligence on his part and the judge a quo correctly held that Hickman was guilty of contributory negligence.

The remaining issue is whether the doctrine of last clear chance has application under the facts disclosed. This doctrine constitutes an exception to the rule that contributory negligence bars recovery for damages and simply stated, holds that when during the course of events leading up to an accident one of the parties guilty of primary negligence has an opportunity to avoid the accident at a time when the other party, likewise negligent, has no such opportunity, as between the two the latter will be relieved of responsibility for his negligence. In Jackson v. Cook, 1938, 189 La. 860, 181 So. 195, 197, the doctrine of discovered peril as previously stated in Rottman v. Beverly, 1936, 183 La. 947, 165 So. 153, was extended or broadened in a case where the driver of the car did not see but could have seen plaintiff in his peril if he had been looking ahead and, therefore, the defendant was not absolved of liability even though he did not discover the peril of the plaintiff. Because of this ruling the doctrine as applied in this state more properly should be termed the doctrine of apparent peril for its result is to hold the motorist liable because he has failed to avoid striking the plaintiff whose peril would have been apparent if he had looked.

The conditions which give rise to application of the last clear chance doctrine were aptly stated in Brown v. Louisville & N. R. R. Company, D.C., 135 F.Supp. 28, 31, thusly:

“As applied by the courts of Louisiana, the doctrine of last clear chance is composed of the following elements: (a) plaintiff in a position of peril of which he was unaware or unable to extricate himself; (b) defendant in a position where he actually discovered, or should have discovered, the plaintiff’s peril; (c) at such time that the defendant could have by the exercise of reasonable care, avoided the accident. All three elements must be present before the rule may be applied. In other words, the doctrine requires that a negligent defendant be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it through carelessness, had in fact a later opportunity than plaintiff to avert the accident.”

In Bergeron v. Department of Highways, 1952, 221 La. 595, 60 So.2d 4, Justice LeBlanc noted that testing the ability of a motorist to avoid an accident involves calculation of: the rate of speed, the time it takes to react to an emergency, and apply the brakes; as well as a determination of the distance in which the vehicle can be brought to a stop, traveling at the given speed. The resulting conclusions which may be arrived at are based principally on assumptions, the difference being one of seconds in the matter of time, and of a few feet only in the matter of distance. He then quoted with approval from Hutcheson v. Misenheimer, 169 Va. 511, 194 S.E. 665, 667:

“The doctrine of the last clear chance is one involving nice distinctions, often of a technical nature, and courts should be wary in extending its application.”

The soundness of the foregoing statement is impressive and we hesitate in cases where the last clear chance doctrine is relied upon to relieve a party of his negligent acts except when opportunity presented to the other party to avert the accident is manifest. Therefore, it has been a rule which has often been followed in our courts that when a pedestrian moves pre-cipitantly from a point of relative safety into the path of a motor vehicle at a moment when it is too late from both point of time and distance to do anything to circumvent an impending accident, the pedestrian may not avail himself of the clear chance doctrine. Bailey v. Reggie, La.App. 1945, 22 So.2d 698; Conway v. Serio, La. App.1950, 47 So.2d 126; Kimble v. Aireo Refrigeration Service, Inc., La.App.1952, 57 So.2d 788; Hall v. Alfortish, La.App. 1952, 60 So.2d 723; Dupuy v. Veazey, La. App.1953, 63 So.2d 756; Moore v. Moran, La.App.1954,74 So.2d 767.

Counsel for appellant has invited our attention to a number of cases in which plaintiff was permitted to recover through application of the doctrine of last clear chance. We have examined these cases but do not find them applicable herein because of the circumstances upon which the court concluded that the driver against whom it was charged had an opportunity to avert the accident, for he actually did have sufficient time and distance within which to act.

As pointed out above, there is little, if any, question of the negligence of the plaintiff, Hicks, due to his excessive speed. It is equally clear the deceased was guilty of negligence contributing to the accident because of his failure to properly observe the approaching automobile, and in crossing its path at an unsafe time. The question now arises as to whether or not Hicks could have avoided striking the deceased after he saw or should have seen the latter in a position of peril. We think Hicks did not have an opportunity to avert the accident from the moment Hickman stepped out of his cab, regardless of whether the peril was known and understood had he looked at that instant. The testimony does not inform us how far away the automobile was when Hickman stepped out upon the pavement. Possibly because of the excessive speed of the automobile none of the witnesses in the automobile was able to give any idea as to this distance. However, it is known that Hickman could have taken no more than four steps from the door of his truck to the point of impact and during this brief interval the automobile skidded a distance of ninety-seven feet, and reaction time of ¿4 of a second added an additional sixty-six feet or more before the brakes took ef-feet. The vehicle was moving more than eighty-eight feet per second. So, affected by these circumstances, we think the answer must be that after the apparent or discovered peril, no opportunity was presented to the driver to avert the accident. Therefore, the doctrine of the last clear chance can have no application in the instant case.

For the foregoing reasons, the judgment from which appealed is affirmed at appellant’s cost.


text:
    Luciel Turner Brown HOWARD, Plaintiff-Appellant, v. Theodore HOWARD, Defendant-Appellee.
    No. 8682.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    See also, La.App., 90 So.2d 523.

      Eugene J. Coen, Shreveport, for appellant.
    Seals, Atkins & Robinson, Homer, for ap-pellee.
   HARDY, Judge.

This suit was instituted by plaintiff seeking recovery of an undivided one-half interest in community property which she alleged was fraudulently conveyed by the defendant, plaintiff’s divorced husband, to his sister, May Ola Roberts, also made defendant herein. Plaintiff seeks to set aside the sale on the ground that it was a simulated transaction undertaken for the purpose of defrauding her of her interest in community property. Plaintiff appeals from .-a judgment in favor of defendants rejecting 'her demands.

On March 7, 1939, plaintiff, Luciel Turn•er Brown Howard, was married to the defendant, Theodore Howard, in Claiborne Parish, Louisiana. The parties separated in or about the year 1946 and on September IS, 1949, Theodore Howard instituted a divorce suit against Luciel Turner Brown Howard upon the ground of two years separation, and on October 7, 1949, judgment •decreeing the divorce was rendered in favor of Theodore Howard. On January 3, 1950, Luciel Howard instituted suit in Claiborne Parish to annul the proceedings in connection with the divorce suit on the ground of want of citation, and in connection with said suit, and on the same date, caused to be filed in the mortgage records of Claiborne Parish a notice of lis pendens which recited the object of the suit as being the annulment of the judgment of divorce and gave notice of plaintiff’s claim to an undivided one-half interest in the property which is the subject of this suit. Judgment was rendered on June 15, 1951, annulling the judgment of divorce. In an action instituted by Theodore Howard against Lu-ciel Turner Brown Howard, a judgment of divorce was rendered in the district court of the Parish of Claiborne in favor of plaintiff on February 13, 1953.

By deed of date December 27, 1945, Theodore Howard, husband of Luciel Ploward, acquired Lot 2 of the McCalman-Hill Subdivision to the Town of Homer, Claiborne Parish, Louisiana, upon which property the parties built a house,. In September, 1950, the day of the month not being shown in the original deed, Theodore Howard, husband of Luciel Howard, sold and conveyed to May Ola Roberts, wife of Roy Roberts, allegedly purchasing with her separate and paraphernal funds, the above described property, together with improvements, for a recited cash consideration of $2,800. The deed was signed by Theodore Howard and Roy Roberts, husband of the vendee, in the presence of George H. Robinson and Doris Cowdcn, who signed as witnesses, and before 01 a Allen, a Notary Public in and for Claiborne Parish, Louisiana. Although this deed was passed in September, 1950, it was not recorded in the conveyance records until August 28, 1952. The instant suit was filed September 9, 1953.

It is to be observed that the deed of conveyance from Theodore Howard to his sister, May Ola Roberts, was executed in the month of September, 1950, during the pen-dency of the wife’s action to set aside the judgment of divorce and at a time when the notice of lis pendens was on record.

Plaintiff contends, first, that the notice of lis pendens, which was on record at the time of the purported sale of the property to May Ola Roberts, was notice of plaintiff’s claim to an interest in said property, and, as a consequence, May Ola Roberts purchased subject to said claim. Under the circumstances we do not think this argument is tenable. The judgment of divorce, which plaintiff successfully attacked and which was set aside as an absolute nullity on the ground of lack of citation, had no effect upon the uninterrupted legal relationship of Theodore and Luciel Howard as husband and wife. There was no dissolution of the marriage, nor of the community of acquets and gains, and, as a consequence, the filing of the notice of lis pendens was without effect. The first judgment of divorce was an absolute nullity and had no more effect than if it had never heen rendered. It follows that Theodore Howard continued, during this entire period, as the legally recognized head and master of the community and as such he was authorized to make disposition of the community property so long as such disposition was not in fraud of the rights of his wife.

This brings up for consideration the second point relied upon by plaintiff in this suit, that is, the question of simulation.

In support of her position plaintiff charges that no consideration was paid or received by the parties to the alleged conveyance of September, 1950; that the transaction was a sham, confected by a conspiracy between plaintiff’s husband, Theodore Howard, and his sister, May Ola Roberts, and designed to defraud her of her community interest in the property.

The evidence produced on behalf of plaintiff in this suit is almost completely of that character which is designated as negative evidence. Plaintiff called as witnesses the notary and the two witnesses to the deed of September, 1950, all of whom testified that no consideration was given by May Ola Roberts or received by Theodore Howard in their presence. Plaintiff thereupon called as under cross-examination the two defendants, Theodore Howard, plaintiff’s divorced husband, and his sister, May Ola Roberts. Both of these witnesses testified that the consideration of $2,800 recited in the deed was paid by May Ola Roberts to Theodore Howard in currency, all in twenty dollar bills, and that the payment was made shortly after the passage of the deed at the home of May Ola Roberts and in the presence of her husband.

Despite the positive testimony of the defendants, we are impressed with the existence of a number of unusual, suspicious and unbelievable circumstances which surrounded the transaction. We concede the principles of law urged on behalf of defendants that the charge of fraud is most serious; that the burden of establishing fraud rests upon the one who alleges its existence, which burden is discharged only by legal and convincing evidence; that fraud is never presumed and that it must be established by exceptionally strong proof. Sanders v. Sanders, 222 La. 233, 62 So.2d 284, and cases cited therein.

However, we point out the equally well recognized principle that the action “en declaration de simulation” falls in a category of fraudulent conduct which, under our jurisprudence, is somewhat less demanding of, and less burdensome upon, the party who alleges the simulation.

In the first place, Article 2480 of our LSA-Civil Code establishes a presumption of simulation in all cases where the thing sold remains in the possession of the seller, and requires the parties to produce proof of good faith and to establish the reality of the sale.

Second, the existence of suspicious circumstances, among which are to be considered the close relationship of the parties to the sale and the payment of the consideration in currency, are entitled to great weight, and the existence thereof may be accepted as evidence of the simulated character of the sale. Agricultural Supply Company, Inc. v. Lavigne, 179 La. 1030, 155 So. 764; Dorsey v. Ashford, La.App., 200 So. 176.

Circumstantial evidence as well as direct evidence is acceptable in establishing a simulation. XVII Tulane Law Review, 470, and cases cited therein.

In view of the last recited principles we feel constrained to carefully analyze the nature and effect of the circumstantial evidence which is reflected by the record in this case.

We think it is significant that although Theodore Howard and his sister both testified that the consideration was paid in the presence of the latter’s husband, he was not called as a witness. The fact that May Ola Roberts was in possession of the substantial sum of $2,800 in cash, represented by currency, all in twenty dollar bills, which, according to her testimony, she kept in her house, is, in itself, a highly suspicious and almost inexplicable circumstance. When questioned as to how she had acquired such a sum of money, May Ola Roberts testified that it had been accumulated over a period of almost 30 years as proceeds of her farming operations, yet she could not name one transaction nor one amount in connection with the sale, of any farm produce. Nor could she identify the source of this alleged income by the production of a single scrap of written evidence. No effort was made to explain the most unusual circumstance which is implicit in the possession of $2,800, all in izventy dollar b'Uls.

Equally baffling and subject to grave suspicion is the story of the defendant, Theodore Howard, as to his disposition of the $2,800 in twenty dollar bills which he swore he received from his sister. The defendant testified that he needed the money to pay bills yet he did not produce one single statement of account nor evidence of indebtedness which he had discharged from the funds received, despite his testimony that he had in his possession a number of bills and accounts. This defendant further testified that much of the money had been spent for doctor’s bills and for the payment of obligations incurred in connection with his operation of a small upholstery shop. Yet it was proved by the testimony of the witness himself that he was a disabled war veteran who had received, since sometime in 1946, monthly remittances from the Veterans Administration which appear to have ranged from $115 to $177 per month; that as an ex-service man he was entitled to and had received on occasions free medical services and treatment; that in connection with his upholstery shop he earned a net profit. Again it is highly significant that the witness chose not to attempt any corroboration of his own testimony by the establishment of any charges for medical services nor by any testimony of witnesses who might readily have been tendered on his behalf in this connection.

As we have above observed, the stories related by the defendants as to the payment of the consideration for the sale of the community property are unbelievable. Even conceding that truth is sometimes stranger than fiction, it is obvious that even the incredible truth asserted by the parties defendant, if so it was, could have been conclusively established by the production of corroborating evidence, much of which, according to their own testimony, existed and was available. Their failure to produce such evidence must be resolved against the acceptance of their versions of the transaction.

The situation itself engenders grave suspicion as to the existence of any degree of good faith on the part of the defendants, and we are at a loss to find any support, under the established circumstances, for their contentions of good faith.

Finally, we opine that there is some ground for the attachment of the presumption established by Article 2480 of the LSA-Civil Code. The defendant, Theodore Howard, remained in possession of the premises for a considerable period of time after the( alleged sale of September, 1950. It is true he testified he paid rent to his sister, but again it is significant that he testified these payments were made in cash. This defendant further testified that his sister had paid taxes on the property since her alleged purchase thereof, which testimony was corroborated by the sister, but it is to be noted that no effort was made to introduce tax receipts or evidence of such payments by the defendant, May Ola Roberts. A witness by the name of Preston Gibson, tendered on behalf of defendants, testified that he had rented the premises for about a year and had paid the rent at the rate of $18 per month in cash to May Ola Roberts, but that he had no receipts for such payments.

It is our conclusion, after careful study of the record in this case, that the circumstances surrounding the transaction which is here called in question speak convincingly in support of plaintiff’s claim that the conveyance was a simulation in fraud of her rights, and it follows that she is entitled to the relief for which she prays.-

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and there is now judgment in favor of plaintiff, Luciel Turner Brown Howard and against the defendants, Theodore Howard and May Ola Roberts, declaring that certain deed of conveyance executed by Theodore Howard on the - day of September, 19S0, and recorded on August 28, 1952, on page 596 of Book 188 of the Conveyance Records of Claiborne Parish, Louisiana, to be null, void and of no effect with respect to the undivided one-half interest claimed by plaintiff.

There is further judgment ordering the cancellation and erasure from the conveyance records of the act of conveyance above described insofar as the same purports to affect the ownership of the undivided one-half interest of plaintiff which is hereby recognized and confirmed.

There is further judgment against the deiendants-appellees for all costs of both courts.