author: McCALEB, Justice.

text:
    232 La. 1026
    George M. AGURS v. Aggie Rollins HOLT et al.
    No. 43047.
    Supreme Court of Louisiana.
    May 6, 1957.

      Tucker, Bronson & Martin, H. M. Holder, Shreveport, for plaintiff-appellant.
    Bullock & Bullock, by Otis W. Bullock, C. E. Hall, Shreveport, for defendants-appellees.
   McCALEB, Justice.

Plaintiff, as successor in title to his grandmother, Mrs. Margaret D. Agurs, who owned all of Section IS and most of Section 14 of Township 17 N., Range 16 E., in Caddo Parish instituted this suit on October 8, 1952 for the reformation of a deed executed by his grandmother on December 12, 1904 in favor of James Holt, father of the defendants, James S. Holt, Jr., Mary Lizzie Holt Williamson and Doris Holt Willis.

Joined as defendants by reason of their ownership of mineral leases acquired from the Holt heirs, which affect portions of the disputed property, were Union Producing Company, Stanolind Oil & Gas Company and Plunt Oil Company, as well as various royalty claimants who acquired from plaintiff and who have aligned themselves with him. Plaintiff subsequently settled with Union Producing Company and therefore there is no dispute as to it. And Stanolind Oil & Gas Company, having acquired mineral leases from all main litigants, took no part in the proceedings.

Hunt Oil Company, which had acquired from defendants an oil and gas lease affecting a portion of the property involved in the litigation, admitted in its answer that the lease had expired by its own terms prior to the commencement of the suit. Nevertheless, it pleaded 10-year prescription acquirendi causa and, since the filing of a notice of lis pendens by plaintiff, it has acquired from defendant, Doris Holt Willis, a new lease which became subject to the outcome of the litigation.

Accordingly, the contest is essentially between George A. Agurs, as successor to his grandmother, and the above named children and heirs of James Holt, the ven-dee under the deed sought to be reformed.

The basis for the action is that the property as described in the deed does not accurately depict the property actually conveyed and that this resulted from mutual error of the parties, it being also contended that the description is ambiguous.

In their answer, defendants deny that there was mutual error or that the deed misdescribes the property or that the description is ambiguous. In the alternative,, defendants pleaded the ten-year liberative prescription under Article 3544 of the Civil Code as a bar to plaintiff’s action for reformation and, in this Court, they have asserted the ten-year acquisitive prescription which was pleaded in the answer of Hunt Oil Company.

Following a protracted hearing, the trial judge concluded that there existed no substantial ambiguity between the description stated in the deed and that shown on a plat of the tract attached to the deed and, further, that plaintiff had failed to establish mutual error. The demand was accordingly rejected. Plaintiff has appealed.

The law respecting reformation of instruments is well settled here and elsewhere. It is an equitable remedy and lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. See Ober v. Williams, 213 La. 568, 35 So.2d 219, citing 45 Am. Jur. Sec. 45 et seq. It is a personal action, even when applied to real estate (see Louisiana Oil Refining Corporation v. Gandy, 168 La. 37, 121 So. 183), in which the burden is on the one- seeking reformation to establish the mutual error and mistake by clear and convincing proof, parol evidence being admissible for this purpose. Waller v. Colvin, 151 La. 765, 92 So. 328; Smith v. Chappel, 177 La. 311, 148 So. 242; Fair v. Williams, 187 La. 953, 175 So. 631 and Southwest Gas Producing Co. v. Hattie Brothers, 230 La. 339, 88 So.2d 649. Hence, it follows that the instant case presents for determination mainly a question of fact, bearing in mind that plaintiff cai'ries the burden of proof and that the evidence of mutual error must be strong and convincing.

The description contained in the deed to the 80-acre parcel sold by Mrs. Agurs to James Holt on December 12, 1904 reads:

“80 acres of land described as follows: Commencing 25.53 chains West on the Section from the NE corner of Section 14 T 17 R 16 run thence West along Section 45.00 chains to stake, thence South 17,77 chains to stake, thence East 45.00 chains to stake, thence ■North 17.77 chains to place of beginning in Section 14 T 17 R 16 in Caddo Parish, Louisiana, together with all buildings and improvements thereon. Plat of said land being hereto attached for greater certainty.”

A plat drawn in pencil on a small piece of notebook paper, dated December 9, 1904 and signed by George Wilson, Engineer, was filed with and, as stated in the description, made part of the deed. The plat shows a square designated as (section) “14” in which quarter section lines are drawn. Inside the square, there appears a tract of land designated as 80 acres and bearing the notations on the north and south sides of “45 chs.” and on the east and west sides of “17.77”. The plat is not drawn to scale and it does not pictorially indicate how far distant the eastern boundary of the 80-acre tract is from the northeast comer of Section 14 which is stated in the description in the deed to be “25.53 chains”. Nor does it show how far distant the western boundary is from the northwest corner of Section 14. However, on the plat itself there is a description of the acreage conveyed practically identical with that contained in the deed.

Plaintiff’s position that the deed and the plat (which he says is ambigous) misde-scribes the property intended to be sold and acquired is founded on the premise that the description in the deed erroneously locates the starting point to be 25.53 chains west of the northeast corner of Section 14 and that the parties actually agreed to pass title to a piece of property of identical dimensions which was 20 chains further to the west of the description set forth in the deed, that is, that the description should have read “commencing 45.53 chains west of the Section from the NE corner of Section 14 * * * ”. And his counsel maintain that the evidence produced by plaintiff in connection with the circumstances surrounding the sale lead only to the conclusion that George Wilson, who surveyed the property on the ground and made the sketch, apparently mistook the northeast corner of the Agurs’ property for the northeast corner of Section 14.

The fact is that the northeast corner of the Agurs’ property, which is bounded in Section 14 on the east by the property belonging to the Dunn family, is exactly 20 chains (the width of a governmental 40-acre tract) west of the northeast corner of the section. Counsel say that an iron pipe at the northeast corner of the Agurs’ property was evidently thought by the surveyor to mark the section comer of the governmental survey.

We think that the evidence clearly and convincingly sustains plaintiff’s contention. The record discloses that, long prior to the execution of the deed, James Holt entered into an oral agreement with plaintiff’s grandmother for the use of 80 acres of her land for a period of three years if he would clear the same. Holt took possession of the 80 acres by clearing the land, farming it and enclosing it with fences. After the lease term expired, Holt made an offer to purchase these 80 acres which was accepted.

Mrs. Agurs had entrusted the management of her property to her son, James M. Agurs, plaintiff’s father. Mr. Agurs was 80 years old at the time of this suit and was the only living witness who had any direct knowledge of the sale. Because of his death during the trial, his pre-trial deposition was admitted into evidence, in which he testified that James Holt wanted to purchase the particular tract he had cleared and that, when it came time to execute the deed, he and Holt went with George Wilson, the engineer, and had the property surveyed on the ground. Mr. Agurs’ description of the procedure used in making the survey is that he, Holt and Wilson began marking- off the property at the northwest corner of the tract which Holt had inclosed; that they walked due south 17.77 chains to where a creek or bayou (called Cross Bayou) runs in an easterly direction and turned east just north of the bayou, walking eastward for a distance of 45 chains, then north for 17.77 chains and, finally, back west to the beginning point. He further asserted that, after marking off on the ground the number of chains which would encompass 80 acres, Wilson located the beginning distances from the section lines so as to describe the property to be sold; that, immediately after the survey, Wilson and Holt went to town, bringing the survey to his mother and that, shortly thereafter, the sale was consummated. Mr. Agurs stated that he was not present at the act of sale.

The deposition of Mr. Agurs clearly evidences that it was Holt’s intention to purchase the land which he had cleared and placed under fence. This testimony is fully supported by the physical evidence that the tract today is cleared and still under fence except for a small portion at the northeast corner which adjoins other property owned by defendants; that the east and west fences are of a distance so that they include within their boundaries approximately 80 acres and that the land immediately to the east of the east fence is not cleared but, rather, is low, marshy land. In other words, subsequent surveys and, in particular, an aerial photograph introduced by plaintiff depict an 80-acre tract of high land, which was cleared and possessed by Holt throughout the years, of identical dimensions as set forth in the act of sale, except that this land is situated 20 chains west of the tract described in the deed, being 45.53 chains from the northeast corner of Section 14 instead of 25.53 chains.

Mr. John E. Heard, a surveyor, was employed by plaintiff to make a survey and to determine if there was any existing evidence of prior surveys which would disclose whether the Wilson survey had been coincidental with the description in the deed and his legend notation on the plat. Mr. Heard testified he did find evidence of an old survey, which coincided with the property presently being occupied by defendants, but he failed to find any evidence of old fences, blazes, markings or stakes identifying the property as described in the deed. It was his opinion that the blazes and markings on “witness trees” clearly supported the testimony of James Agurs that the survey made by Wilson on the ground, just prior to the sale, was to mark off the 80 acres as presently occupied by defendants. He further expressed the view that, when Wilson described the property as stated on his plat, he undoubtedly mistook the NW corner of the NE^4 of the NE54 of Section 14, for the section corner of the NE14 of Section 14, and that this accounts for the described location of the property being- 20 chains east of where the tract is situated and of the point where the parties intended as the beginning point in stating the description of the tract.

Plaintiff’s witness, Fred Rogers, testified that, just before World War II, he purchased merchantable timber on the Agurs’ property in the vicinity of Holt’s property; that, at this time, James Holt pointed out to him the property he owned and that, while Holt did claim some land to the east of his east fence, he disclaimed any ownership to property over the bayou or creek. Yet, the deed description would make it appear that the southeast corner of the property extends over and across this body of water. Significantly, it is pointed out by plaintiff’s counsel that Holt permitted Rogers to cut timber on at least a portion of the property, to which claim is now being made, under a belief that it did not belong to him but rather to Agurs.

The testimony of defendant, James S. Holt, Jr., taken in a pre-trial deposition, also tends to support plaintiff’s contention that the deed as written did not reflect the intention of the parties and that Holt never did claim any portion of the land lying to the east of his east fence. Holt, Jr., stated that, as far back as he could remember, the fences were the same as they are today; that his father was a very particular man in his business dealings and that he would hardly fence in property which did not belong to him.

On this aspect of the case, plaintiff’s counsel correctly observes that the testimony of Holt, Jr. is contrary to defendants’ denial of any mutual error because, if effect be given to the deed as it is presently written, the result would be that Holt had fenced in 36 acres on the west that did not belong to him and failed to fence 36 acres on the east that he did own.

The defense evidence does not rebut the strong case made by plaintiff. Various witnesses produced by defendants testified that the area to the east of Holt’s east fence was known as Holt’s property, being referred to locally as “Holt’s Bottom”; that it was used by Holt as pasture for his animals and as a source of fire wood and that there was a gap in the east fence to allow passage through it but, when closed, it served to prevent animals from crossing over to the western portion which was under cultivation. And counsel for defendants also point to the fact that Holt and his heirs have paid the taxes on the property since its acquisition, whereas neither plaintiff nor his heirs ever paid taxes on this eastern 36 acres.

There is obviously no merit in defense counsel’s argument respecting the payment of taxes by defendants. The assessment rolls merely reflect the ownership according to the recorded deed of an 80-acre tract. Nor do we find any substance in the conclusion that counsel draw from certain mineral leases and conveyances executed by plaintiff, wherein it was recited that he is the owner of all of the land located in Section IS, notwithstanding that part of the property enclosed by Holt is located in Section 15. Obviously, plaintiff had no actual knowledge of the fact of Holt’s ownership until 1952 when this dispute arose.

In addition, while it may be true that defendants and their father did use certain portions of the land lying east of their fence, the evidence makes it abundantly clear that this use was only by sufferance of the Agurs and that Holt never possessed it as owner. Indeed, we think the evidence makes the conclusion inescapable that Holt actually intended to purchase and did purchase from Mrs. Agurs the exact 80-acre parcel he had fenced and occupied, the eastern boundary of which lies 20 chains further west than the eastern boundary of the land described in the deed and that the instrument should be accordingly reformed so as to reflect the true facts.

Defendants’ plea of the 10-year liberative prescription is not meritorious. While it is settled that an action for reformation of a deed is a personal action and, hence, is governed by the prescription provided by Article 3544 of the Civil Code, it is equally well established that this prescription does not begin to run against the party having the right to seek reformation until the error or mistake is discovered by him or should have been discovered by the use of due diligence. See Louisiana Oil Refining Corporation v. Gandry, supra; Haas v. Opelousas Mercantile Co., 197 La. 500, 2 So.2d 3 and Antley v. Smith, 219 La. 525, 53 So.2d 401. The record indicates-that plaintiff first obtained actual knowledge that the defendants were claiming ownership of land in the NW14 of the NE^. of Section 14, which he believed he owned, in 1952 when he visited the site of an oil well which was being drilled in that quarter quarter section and this suit was filed within a few months after this discovery. Prior to that time there was no occurrence (and defendants have not referred us to any) which would or should have placed plaintiff or his ancestors on inquiry as to the correctness of the description contained in the deed to the property conveyed to Holt.

The principal defendants, the heirs of James Holt, alternatively seek to take advantage of the 10-year acquisitive prescription pleaded by defendant, Hunt Oil Company, and they claim that they have long ago perfected a valid prescriptive title to the acreage lying east of the fence erected by Holt and covered by the erroneous description contained in the deed. This contention is founded on the theory that, since they corporeally possessed the property west of the east fence, such possession was sufficient to sustain their claim to all of the property described in the deed. In support of this claim, they rely on Article 3498 of the Civil Code providing that “When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.”

The plea is without merit for the simple reason that neither did Holt nor the defendants ever possess or intend to possess as owner the land east of his east fence under the deed, which erroneously included that property as part of the tract conveyed. It is to be noted that Article 3498 of the Civil Code, relied on by defendants, merely establishes a presumption that the possessor intends to possess to the full extent of the limits set forth in the title. But, where it is shown, as here, that the purchaser did not intend to buy or possess the property, as described in the deed, there is no basis for a conclusion that he has possessed conform-ably to the title and, even if it is found that he possessed a part, the presumption that he possessed according to the title is rebutted by the fact that no such possession was intended.

Where there is a sale under an erroneous description, the title passes to that property which the parties actually intended to buy and sell notwithstanding the error in the description of the property conveyed. Fair v. Williams, 187 La. 953, 175 So. 631. For this reason alone it would seem that, as between the parties, no just title to the erroneously described property is translated and the vendee cannot use such title as a basis for prescription. Kittridge v. Landry, 6 Rob. 477.

The judgment appealed from is reversed and it is ordered that there be judgment herein in favor of plaintiff and against James S. Holt, Mary Lizzie Holt Williamson and Doris Holt Willis, decreeing that the deed, dated December 12, 1904, by Mrs. Margaret D. Agurs in favor of James Holt, conveyed only the following described property and that said deed be and it is now corrected so that the description of the property conveyed therein reads:

“Commencing 45.53 chains West on the Section from the NE corner of Section Fourteen (14), Township 17, Range 16, run thence W along the North Section line of Sections Fourteen (14) and Fifteen (IS), same Township and Range, 45 chains to stake, thence South 17.77 chains to stake, thence East 45 chains to stake, thence North 17.77 chains to place of beginning, being in Sections Fourteen (14) and Fifteen (15), Township 17, Range Sixteen (16) West, Caddo Parish, Louisiana.”

Defendants are to pay all costs.

      . Defendant, Aggie Rollins Holt, James Holt’s widow in community, died subsequent to the institution of this suit and the above named defendants succeeded to her rights as her heirs at law.

      . Actually, the evidence shows that the tract possessed by Holt under the deed extends over the western limits of Seetion 14 and into Section 15 for a distance of 666 feet.

      . On February 26, 1909, Holt acquired a 50-acre tract in Section 11, T. 17, R. 16, situated due north of the 80-acre tract in controversy.


source: Caselaw Access Project

author: HAMLIN, Justice ad hoc. HAMITER, Justice HAWTHORNE, Justice

license: Public Domain

text:
    232 La. 1043
    STATE of Louisiana v. Emilee Brownell GUIMBELLOT.
    No. 43313.
    Supreme Court of Louisiana.
    May 6, 1957.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Bertrand De Blanc, Dist. Atty., Lafayette, Charles T. Everett, Asst. Dist. Atty., Crowley, for relator.
    Gravel, Humphries, Sheffield & Mansour, Alexandria, Chappuis & Chappuis, Crowley, for respondent.
   HAMLIN, Justice ad hoc.

In the exercise of our supervisory control (Article VII, Sec. 10, Louisiana Constitution of 1921-LSA), we granted writs to review a judgment of the Fifteenth Judicial District Court for the Parish of Acadia, State of Louisiana, which quashed a bill of information charging the defendant with violating LSA-R.S. 51:191 and 51:192 — said bill of information reading, in part, as follows:

“ * * * Emiiee Brownell Guimbel-lot at the Parish of Acadia on or about the 7th day of October in the year of Our Lord, one thousand nine hundred and fifty six (1956), a Sunday, between the hours of 10 o’clock A.M. and 12:30 o’clock P.M., being the proprietor of a restaurant, the Evangeline Cafe, a place of business located in the Parish of Acadia, licensed under the laws of Louisiana and the Parish of Acadia, did open said place of business and did then and there sell to one Evans Lejeune, six (6) cans containing Falstaff beer, being merchandise and stock kept in said establishment and being an intoxicating alcoholic malt liquor; in violation of R.S. 51:191 & 192 and as defined therein, * * * ”

The pertinent portion of the motion to quash reads as follows:

“That on the face of said information the defendant is alleged to have sold six (6) cans containing beer and which is alleged to be an intoxicating malt liquor; that under the laws of the State of Louisiana, beer is a malt beverage and is not classified as an intoxicating liquor and consequently beer is not a commodity, the sale of which on Sunday is prohibited by the laws of the State of Louisiana.”

LSA-R.S. 51:191 (The Sunday Closing Law) provides:

“All stores, shops, saloons, and all places of public business, licensed under the law of Louisiana or under any parochial or municipal law and all plantation stores, shall be closed at twelve o’clock on Saturday nights, and remain closed continuously for twenty-four hours, during which time no proprietor thereof shall give, trade, barter, exchange or sell any of the stock or any article of merchandise kept in his establishment.
“Whoever violates this Section shall be fined not less than twenty-five dollars nor more than two hundred and fifty dollars, or imprisoned for not less than ten days nor more than thirty days, or both for each offense.”

However, LSA-R.S. 51:192 enumerates certain businesses exempt from the provision of LSA-R.S. 51:191, and reads as follows:

"The provisions of R.S. 51:191 shall not apply to newsdealers, the sale of ice, watering places and public parks, places of resort for recreation and health, newspaper offices, keepers of soda fountains, printing offices, book stores, drug stores, apothecary shops, undertaker shops, public and private markets, bakeries, dairies, livery stables, railroads, whether steam or horse, hotels, boarding houses, steamboats and other vessels, warehouses for receiving and forwarding freights, restaurants, telegraph offices and theaters, or any place of amusement, unless intoxicating liquors are sold in the premises. Stores may be open for the purpose of selling anything necessary in sickness and for burial purposes.
“Hotels or boarding houses may sell wine for table use on Sundays. No alcoholic, vinous or malt liquors shall be given, traded or bartered or sold or delivered in any public place on Sundays, except when administered or prescribed by a practicing physician in the discharge of his professional duties. In which case the physician administering the intoxicating liquors may charge therefor.” (Emphasis ours.)

LSA-R.S. 26.241(5), as amended by Act 123 of 1956, now reads:

“ ‘Malt beverages’ means beverages obtained by alcoholic fermentation of an infusion, or concoction, of barley or other grain, malt, and hops in water, including among other things, ale, beer, stout, porter, and the like. Malt beverages are exclusive of all ’liquors’ whether they be defined as intoxicating or spirituous liquors or as alcoholic, vinous, or malt liquors, or however otherwise defined as liquors.” (Emphasis ours.)

In the case of State v. Viator, 229 La. 882, 87 So.2d 115, this Court held that beer is a “malt beverage” and is not classified as a “liquor”. We did not hold that beer is not an “intoxicating beverage”.

We agree with our learned brother below in his analysis of the Viator case, supra, and of LSA-R.S. 26:241(5), as amended by Act 123 of 1956, in view of its clear and unmistakable provisions. Therefore, we find no error in his judgment quashing the bill of information, and we quote from his opinion as follows:

“ * * * In State v. Viator, supra, the Supreme Court applied the statutory definition of the words ‘intoxicating or spiritous liquor’ as is found in Louisiana Revised Statutes of 1950, Title 26, Section 241, to the language found in Article 91 of the Louisiana Criminal Code (Title 14; Sec. 91 of the Revised Statutes), and held squarely that beer was not included in the word ‘liquor,’ but was in fact defined by that statute as a ‘malt beverage,’ since ‘liquors’ contemplate only distilled or rectified alcoholic beverages and not those obtained by alcoholic fermentation of grain, malt and hops in water, which latter class included beer.” (Emphasis ours.)
“Following this decision, the legislature of 1956, adopted Act No. 123 of 1956, which amended Title 26, Section 241 of the Revised Statutes, so that ‘malt beverages’ are now defined as follows; the underlined portions having been added by the 1956 amendment:
“ ‘241. The following terms have the respective meanings ascribed to them, except in those instances when the context indicates a different meaning:
(5) ‘malt beverages’ means beverages obtained by alcoholic fermentation of an infusion, or concoction of barley or other grain, malt and hops in water, including, among other things, ale, beer, stout, porter and the like. Malt beverages are exclusive of all 'liquors’ ■whether they be defined as intoxicating or spiritous liquors, or as alcoholic, ■vinous, or malt liquors, ór hozo ever otherwise defined as liquors.’
if * * * íjí *
“How the law reads and what acts are prohibited constitute political questions which address themselves to the legislature and not to the Courts. The legislature has seen fit to restrict the meaning of the word ‘liquor,’ and to specifically and emphatically exclude beer from this category, and penal laws dealing with this subject must be read accordingly.
* * sfc * * *
“The Court is of the opinion that beer is not embraced within the term ‘intoxicating liquor’ as it appears in LSA R.S. 51:192, and that defendant’s place of business being exempt from the Sunday Closing Law, the prosecution in this case is without merit and the motion to quash is sustained. * * * ”

For the reasons assigned, the judgment of the district court is affirmed.

HAMITER, Justice

(dissenting).

Contrary to the interpretation which some persons have given it, our holding in State v. Viator, 229 La. 882, 87 So.2d 115, 116, was not that beer is non-intoxicating. In that case the court was reviewing convictions on the charge that each defendant had sold and delivered “beer to * * * a person 18 years of age”, and involved were two statutes specifically dealing with the sale of intoxicants to minors. One of the statutes prohibited the selling of intoxicating or spirituous liquors to any person under the age of 21 (LRS 14:91, for the violation of which the defendants were charged). The other prohibited the sale of beverages of low alcoholic content to any person under the age of 18 years (LRS 26:285). The rationale of the decision (holding that LRS 26:285 governed as to the sale of beer), as I understood it and w'hich was the sole reason for my subscribing to the ruling, was that since the two statutes were in pari materia (both related to the same subject matter — the sale of intoxicants to minors) they should be considered together in determining the meaning of LRS 14:91 on which the prosecutions were based.

In the instant case, however, the two statutes involved do not pertain to the same subject matter; hence, they are not in pari materia and it is improper to consider them together. One relates generally to the granting of permits for the sale of alcoholic beverages (LRS 26:241 et seq., as amended by Act 123 of 1956). The other deals specifically with the regulation of business operations on Sundays (LRS 51:191 and 192). And when considered alone, LRS 51:192 undoubtedly prohibits the Sunday sale of beer, for it provides that “No alcholic, vinous or malt liquors shall be * * * sold or delivered in any public place on Sundays * * *.” Often, this court has indicated that the phrase “malt liquors” includes intoxicating beer. See Town of Mandeville v. Baudot, 49 La.Ann. 236, 21 So. 258; Sate v. Maroun, 128 La. 829, 55 So. 472 and City of Shreveport v. Smith, 130 La. 126, 57 So. 652. (Emphasis mine.)

I respectfully dissent.

HAWTHORNE, Justice

(dissenting).

It is my view that beer is a malt liquor as that term is used in R.S. 51:192. See definition of “malt liquor”, 30 Am.Jur. 256, and of “beer”, 48 C.J.S. Intoxicating Liquors § 13, p. 140.

I think the majority has erred in two respects:

First, since the term “malt liquors” in the statute under consideration is clear and unambiguous and includes beer, there is no reason for applying the pari materia rule to obtain a definition of this term.

Second, R.S. 51:192 and R.S. 26:241 are not laws in pari materia. See dissent in State v. Viator, 229 La. 882, 87 So.2d 115. R.S. 51:192 deals with the Sunday law and the regulation of certain businesses on the Sabbath. Chapter 2 of Title 26 has for its purpose the regulation of traffic in alcoholic beverages, the issuance of permits and licenses for the sale thereof, the collection of taxes on the sale of alcoholic beverages, the causes for suspension or revocation of permits, and restrictions under which the dealer may operate. Thus it can be plainly seen that the scope and aim of the two statutes are distinct and unconnected. See Malone v. Cannon, 215 La. 939, 41 So.2d 837.


author: FOURNET, Chief Justice.

text:
    232 La. 1053
    UNITED DISTRIBUTORS, Inc. v. AIRCO APPLIANCE & HARDWARE, Inc., et al.
    No. 42956.
    Supreme Court of Louisiana.
    May 6, 1957.

      S. Paul Weiss, Jr., New Orleans, for plaintiff-appellant.
    Harold J. Zeringer, Jr., New Orleans, for defendants-appellees.
   FOURNET, Chief Justice.

The plaintiff, United Distributors, Inc., alleging that it had sold merchandise to defendant Aireo Appliance & Plardware, Inc. on the faith of a guarantee of credit signed by defendants Henry R. Burke and Alfred R. Willis, instituted proceedings against the three in solido to recover the amount of a note signed by Burke as president of the said corporation. The liability of Burke and the corporation is not at issue, no defense as to them having been made; but Willis answered, denying liability on the guarantee, claiming that the sole consideration for the execution of the instrument was the fact that he was at that time a prospective shareholder of the corporation to the extent of 50% of the stock, but that the consideration failed in that the plan did not materialize and he never became a stockholder, all to the knowledge of plaintiff; in the alternative, if the Court should find that the guarantee is a binding obligation on the defendant Willis, then he pleaded the revocation of the instrument; and in the further alternative, filed a plea of es-toppel. On trial of the case there was judgment dismissing the suit as to Willis, and from that judgment the plaintiff has appealed.

The facts pertinent to a decision in this case are that in January, 1953, Henry R. Burke formed a corporation known as Air-eo Appliance and Hardware, Inc., hereinafter called Aireo, with a store at 502 Metairie Road, Metairie, La., and shortly thereafter Willis, who was engaged in the construction business, considered acquiring a half interest in the corporation. The men proposed to conduct an appliance business, dealing in washing machines, refrigerators, stoves, etc., and a salesman of the plaintiff, one George R. Seamon, offered a so-called budget plan for selling the company several thousand dollars’ worth of stock-in-trade, payment to be by weekly payments over a period of 20 weeks. A proposed initial order was prepared and the necessary papers, including an application for credit, a note, and post dated checks to satisfy the requirements of the budget plan, were signed by Willis and Burke; the salesman then took the two men to the plaintiff’s place of business where they met the credit manager, were conducted to the private office occupied by Mr. Rash, the late president of the plaintiff, and where each signed a duplicate copy of the guarantee on which plaintiff predicates the liability of Willis. It appears from the testimony that the guarantee was a special form which Mr. Rash had composed “for his own protection,” his method of operation being to require the individual people who were forming a corporation to sign the form presented, incorporating a personal guarantee of the debts of the company, so that if it were to become insolvent the individuals could be held responsible. Some two days later Willis, having concluded that the appliance business was too precarious, decided not to become associated with the venture in any way; the plaintiff was so informed and Seamon returned to the Air-eo store with all papers which had been signed in connection with Willis’ participation in the business with the single exception of the guarantee; Willis and Burke, believing that the guarantee was included, immediately destroyed the papers. Sea-mon was unequivocal in saying that from then on he knew Willis was not to be associated in the Aireo corporation.

The purchases, non-payment for which formed the basis of this suit, were made by the corporation under Burke’s operation, he having continued the appliance business after the events detailed above and having made periodic purchases from plaintiff. The instant note, in amount of $3,107.82, due May 1st, 1954, was given by Aireo in payment for air conditioning units purchased a year after Willis had made his decision not to become a stockholder in Aireo. Willis’ liability in solido for the full amount of the note plus interest and attorney’s fees is based on the guarantee signed by him in March, 1953 which, unknown to him, had been retained in the files of the plaintiff company.

The plaintiff contends that the contract is clear and unambiguous, and defendant is bound by its contents; that there is no showing that Willis revoked the guarantee in writing, as required by its provisions; and that, relying on the guarantee, the plaintiff sold the merchandise, for which payment has never been received. It seeks to invoke an equitable maxim that where one of two innocent persons must suffer a loss, that loss should be borne by the one whose negligence was the cause.

The testimony of Mr. Passmore, plaintiff’s credit manager at the time of the signing of the guarantee, that he received neither verbal nor written advice to the effect that Willis was not to be associated with Aireo, is not impressive in the light of the facts of the case as hereinabove disclosed and the fact that Burke testified he notified the plaintiff in writing of Willis’ decision. From the record it is clear that the sole motive for execution of the guarantee by Willis — which guarantee was signed con-formably with the policy of the plaintiff’s president with respect to the extension of credit to new corporations — was Willis’ intention to become a stockholder to the extent of a half interest, and to be associated in the undertaking; it necessarily follows that when his acquisition of stock did not materialize and the plaintiff was apprised that he would not be connected with Aireo, the motive failed and the contract became ineffective. Revised Civil Code Articles 1825, 1826 and 1827.

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

      . The guarantee reads as follows: “In consideration of the sale of goods, wares, and merchandise and the extension of credit granted in connection therewith by The United Distributors, Inc., or Contract Acceptance Corporation to Air-eo Appliance & Hardware, Inc., I hereby unconditionally guarantee the prompt and punctual payment to The United Distributors, Inc., or Contract Acceptance Corporation of any indebtedness which shall be owing at any time to The United Distributors, Inc., or Contract Acceptance Corporation on account of merchandise sold heretofore or'hereafter, whether said indebtedness is in the form of notes, bills, or open account. This shall be an open and continuing guaranty, and shall continue in force notwithstanding any change in the form of such indebtedness, or renewals, extensions, or indulgences granted by The United Distributors, Inc., or Contract Acceptance Corporation, without obtaining my consent thereto, and until expressly revoked by written notice from me, and any such revocation shall not in any manner affect my liability as to any indebtedness contracted prior thereto. Notice of indebtedness and of default in payment are hereby waived. Liability under this guaranty shall, at no time, exceed the sum of $10,000.”

      . In handing over the documents, including the application for credit, the order forms, the note and post-dated checks, Seamon gave the assurance that he was returning “all the papers there were.” saying “Here is everything; this is the end.” He was unaware that Willis and Burke had signed the guarantee.

      . Burke explained that “This [note] was signed in April or May of 1954 and we had a June 10 billing on it * * * The first payment [on the note] due in June. Then what happened, the distributors began underselling. Where we paid $236 for a unit the distributors were selling for $185. We had no price protection. I had the money at the time and I wanted to make a settlement with United Distributors to pay on the basis they were currently getting for the units but they would not accept it. Meantime, the money became used up in the corporation and we ran out of money. * * *. Mr. Willis had no part of it at no time. * * * ” (Emphasis supplied.)


author: AYRES, Judge.

text:
    Habeeb MONSUR, d/b/a Hab Monsur Real Estate Brokerage Company, Plaintiff-Appellant, v. Mrs. Mildred Smith HOORNSTRA, Defendant-Appellee.
    No. 8635.
    Court of Appeal of Louisiana. Second Circuit.
    May 27, 1957.
    Gravel, Plumphries, Sheffield & Mansour; Leonard Führer, Alexandria, for appellant.
    Gold, Hall & Skye, Alexandria, for ap-pellee.
   AYRES, Judge.

This is an action by plaintiff, a real estate broker, who seeks to recover of the defendant $250 upon the claim that defendant is indebted unto him in said sum as a real estate sales commission. Plaintiff alleges he solicited the sale of defendant’s property for $5,000 and that he procured a purchaser therefor; that at his suggestion the $250 as his fee or commission was added to the sales price so as to net defendant the sum of $5,000, and that, accordingly, defendant signed a sales agreement with one Eugene Levy wherein she agreed to sell the property to Levy for $5,250, and that, therefore, as he had procured a purchaser for defendant’s property, defendant became obligated to him for his fee or commission of 5% of the sales price.

Defendant denies that she ever employed plaintiff or engaged his services as a real estate agent or broker for the purpose of selling her property, and contends that plaintiff did not represent her but a party who desired to purchase her property, whose name plaintiff concealed from her and refused to disclose, notwithstanding repeated requests therefor; that she refused to accept liability for the payment of any fee or commission to plaintiff, who thereupon, after consulting his principal, advised that his principal would pay the commission and plaintiff added the amount thereof to the consideration in the document that he had defendant sign, and that upon learning the name of the purchaser she refused to sell her property. The sale was never consummated because defendant refused to sell to Levy. From a judgment rejecting his demands plaintiff has appealed.

Defendant predicates her defense primarily upon the contention that since Levy was plaintiff’s principal she owes plaintiff nothing and he must look to his principal for compensation, and further, under the circumstances of the transaction, defendant would not have become obligated to plaintiff unless she accepted and received payment from Levy, which would have included the commission that Levy owed plaintiff, in which instance her obligation would have been merely to pass along or transmit to plaintiff, Levy’s money.

Plaintiff’s recovery is sought upon the basis of an alleged contract with defendant to pay his fee. In counsel’s brief plaintiff’s position is stated thusly:

“Regarding the first point raised above, it should be noted that, as in all contract cases, the existence or non-existence of a contract between plaintiff and defendant is governed primarily by contract law and not by the law of principal and agent. Therefore, those large parts of the record concerned with the principal and agent aspects of the case are of but limited relevancy. There is ample evidence tending to show that a verbal agreement existed between plaintiff and defendant whereby defendant was to pay plaintiff his commission; the commission was earned when the buy and sell agreement was signed evidencing the fact that a ready, willing and able buyer had been procured.”

Defendant’s position is reflected in her counsel’s statement in brief in this language :

“From the foregoing, it is quite apparent that if the Court concludes that, on the basis of the evidence submitted, plaintiff was the agent of the buyer, Levy, he would be entitled to no commission from the plaintiff unless the transaction was completed. In that event, he would obtain his commission simply because it was incorporated in the sales price as a matter of convenience and at the request of the broker. In other words, the seller simply does not owe a commission to the real estate agent when the agent is acting on behalf of the buyer.”

In giving consideration to these contentions the trial court very appropriately stated:

“A careful review of the case has been convincing that it is unnecessary to make a legal determination as to whether the law of contracts or that of principal and agent is to be applied. For, if we view the matter as plaintiff would have us look upon it — that there is a simple factual issue as to a contract to pay a commission — he is not entitled to recovery because the facts on that issue are against him, even when the contradictions are put aside and his own version is accorded absolute verity.
“We have it from Mr. Monsur that he, with knowledge that Mr. Levy would pay $5,000, went to defendant to inquire if she would sell, and upon being informed' that she would sell for $5,000, told her that he would have to receive a 5% commission; thereupon defendant objected to the commission being deducted from the $5,000; that he then went back to Mr. Levy and reported that he had to have a commission and that the price would be $5,250. Mr. Levy agreed to the price hike and signed an agreement to buy which stipulated that price. Thus we have the situation, according to plaintiff, where defendant refused to obligate herself for the commission, and Mr. Levy, upon being told that the price was being increased because defendant could not assume the commission, consented to pay the amount necessary to net defendant the price she demanded plus the agent’s fee, with the result that the agent inserted into the contract a consideration which included the total of the net sales price and the fee.
“Plaintiff has, by his very positive and clear testimony, confirmed defendant in her position that she did not agree to pay plaintiff a commission. All that she did was to consent to the commission being added onto her price with the well understood intention that she would deliver the commission to plaintiff when the sale was accomplished. Clearly, she did not agree to pay plaintiff a fee for producing someone who would pay the price she wanted, and that is the basis of plaintiff’s case.”

We not only fail to find any manifest error in his Honor’s conclusion but find they are fully supported by the record.

In Boykin v. Louisiana Petroleum Corporation 172 La. 574, 134 So. 749, plaintiff alleged that at the instance and request of defendants he procured for them certain oil and gas leases in Richland Parish and sought recovery for services rendered. The court said:

“Plaintiff bases his right of recovery solely upon the ground that these defendants employed him to procure or assemble for them certain oil and gas leases. Having based his right of recovery upon a contract of employment, the burden of proving the contract was upon plaintiff.”

In the. instant case plaintiff, having predicated his demands upon an alleged contract of employment, bore the burden of proof. In the case cited the facts show that plaintiff was actually representing other interests than those of the defendants and, hence, was denied the recovery of a commission.

This court pointed out in Neal v. Reeves, La.App., 4 So.2d 796, that a real estate agent or broker representing the interest of the purchaser cannot recover a commission from the seller in the absence of his agreement or obligation to pay such fee.

Another case in point is that of U. S. Realty Sales of Shreveport v. Rhodes, La.App., 34 So.2d 523, 524, wherein a similar conclusion was reached by this court. In the course of the opinion this court stated :

“The record fails to establish that defendant Rhodes employed plaintiff as a broker or agreed to pay a commission on the sale. On the contrary, we find that plaintiff was primarily representing Kaufman the purchaser and that the agent’s efforts to secure Rhodes’ agreement for his firm to act as his agent were unsuccessful.”

It has been held that no one can legally claim compensation for voluntary services to another, however beneficial they may be, nor for incidental benefits and advantages accruing to him on account of services rendered tó another by whom he was employed, and that before a legal charge can be sustained there must be a contract of employment either expressly made or superinduced by the law on the facts. Succession of Kernan, 105 La. 592-604, 30 So. 239; Rosenthal v. Cangelosi, La.App. 164 So. 502-506; Moore v. Loe, La.App., 37 So.2d 345.

In Pardue v. Sitman, La.App., 148 So. 288, the prospective purchaser was held liable for the realtor’s commission, notwithstanding that the amount of such fee was included in the sales price of the property.

A consideration of the record as a whole is not convincing that plaintiff has established any definite agreement or contract wherein defendant was to pay plaintiff’s brokerage fee. To the contrary, the evidence shows clearly that defendant most positively refused to obligate herself for such fee or commission. Neither does the proof establish that plaintiff represented the defendant in this transaction. Obviously, he represented the intended purchaser. Accordingly, plaintiff has failed to prove any indebtedness due him on the part of defendant.

Therefore, the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: ELLIS, Judge.

text:
    Ernest JOHNSON v. CALCASIEU PAPER COMPANY.
    No. 4426.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.

      Gist, Murchison & Gist, Alexandria, for appellant.
    Wood & Jackson, Leesville, for appellee.
   ELLIS, Judge.

Plaintiff filed this suit for compensation for the maximum amount as the result of an alleged accident received by him on or about May 25, 1955 while employed by the defendant as a laborer, and as a result of which he alleged he suffered total and permanent disability. After trial he was awarded compensation as prayed for and the defendant has prosecuted this appeal.

After a careful consideration of this entire record and particularly the brief on behalf of defendant we find that the able District Judge has thoroughly and correctly discussed the facts as shown by the record and has specifically considered the four defenses to plaintiff’s right to recover, and in view of the fact that an examination of defendant’s brief filed in this court is a reiteration of the four defenses made in the lower court and there considered, and there being no new arguments advanced by defendants now any specific errors in the lower court shown other than the general contention that the conclusion reached by the lower court was in error, we hereby adopt the opinion of the District Court except as hereinafter shown by footnote and we quote:

“In this workmen’s compensation case plaintiff, Ernest Johnson, seeks-to recover compensation at the maximum rate for a period not to exceed 400 weeks, for injuries allegedly sustained May 25, 1955 while in the employ of defendant Calcasieu Paper Company, Inc.
“The employment, the hazardous nature thereof, and the $30.00 per week rate for compensation are admitted by the defendant. Defendant also admitted ‘that on or about the date alleged the plaintiff herein complained to his follow employees of having hurt himself as alleged, and that he reported said accident to his foreman. * * *.’
“At the beginning of the trial the following stipulation was dictated into the record. (Punctuation has been changed from the original record.)
“ ‘It is agreed and stipulated by and between counsel for plaintiff and defendant that the plaintiff, Ernest Johnson, had worked for Calcasieu Paper Company for a period of approximately two years prior to the date of his alleged accident, most of which time he had worked as a counterroll rewinder operator; that during this entire two year period that the plaintiff’s work record was satisfactory in all respects.
“ ‘That on May 25, 1955 while he was working for the Calsasieu Paper Company at Elizabeth, Allen Parish, Louisiana, and while in the course and scope of his employment that he said that he sustained an accident to his neck, shoulder and general cervical region. That at this time he was in the course and scope of his employment; that he had a rod or a bar in his hand attempting to turn over a roll of paper weighing approximately 500 pounds and that at this time he was helped and assisted by Earl LaFleur. At the time that they were together trying to move the rolls of paper (Mr. Johnson) immediately told Earl LaFleur that he had hurt his neck or cervical spine area; that within a matter of a few minutes, Frank Gordon, appeared on the scene and that he told Frank Gordon that he had hurt his neck, shoulder or cervical region; that at approximately the same time Monroe Strother who was working a short distance away appeared on the scene and he likewise told Monroe Strother the same thing; that a conversation ensued between Earl LaFleur, Frank Gordon, Monroe Strother and Ernest Johnson at which time they told him he had better report the accident to his foreman; that within a few minutes thereafter or after the conversation that the plaintiff did report in the proper manner the occurrence of the alleged accident to Stewart Willis who was his foreman at that time; that immediately Stewart Willis informed the plaintiff and he went to the company physician (who we believe to be Dr. Martinez at the company clinic; that Dr. Martinez) was a substitute at that time; that no presumption will be created against either party in the failure to produce the witness, Dr. Martinez; that on the next day May 26, 1955, the plaintiff reported to the regular company physician, Dr. Saint, at the company clinic in Elizabeth.
“ ‘That compensation was paid to the plaintiff at the rate of $30.00 a week during the period of May 25, 1955 through and including January 12, 1956 at which time payments were terminated, but that said payments were made subject to no admission of liability on the part of the defendant.
“ ‘That when the plaintiff applied for work at Calcasieu Paper Company that he was asked to sign or to give information as to whether he had had previous accidents. That at the time he was asked if he had had previous accidents he stated that he had had one previous accident to his low back sometime around 1949 or 1950 and that he received a settlement on this claim of $500.00; that, in fact, the plaintiff at that time or prior to that time had actually had three accidents, one being to his low back while working for the Ross Gravel Company in Vernon Parish from which he received a settlement of $500.00; that a second injury to his low back area while working for the Ross Gravel Company approximately 1950 from which settlement he received $2500.00; that he had sustained a third accident while working for a sub-contractor of Crosley Chemical Corporation of DeRidder, Louisiana, during the year 1951 an injury to his head and neck from which he received a settlement of $2000.00 plus $50.00 for medical expenses.’ ”
“Defense counsel sets forth in its brief that the Calcasieu Paper Company, Inc. defends this law suit on the following grounds, to-wit:
“ ‘1. Defendant maintains, based upon competent facts and information which were not in its possession until after this law suit was filed, that the plaintiff in all probability never sustained any accidental injury while in its employ.
“ ‘2. If the plaintiff did sustain any accidental injury in its employ which either caused the alleged disability complained of, or aggravated a prior existing condition, all of which has been denied, then the defendant contends that the plaintiff received full and proper treatment, and that he had fully recovered from the ill effects of any such disability.
“ ‘3. If the Court should feel that the plaintiff did sustain a disabling injury while in the employ of this defendant, the Calcasieu Paper Company feels and maintains that if the plaintiff is suffering from any residual disabling effects of this injury, same are due entirely to his arbitrary refusal to cooperate with the attending physicians, Drs. Saint and Ranks in that he has arbitrarily refused to attempt to do any work of any type or nature whatsoever, and that according to the opinion and testimony of these doctors conservative therapy of this type would not be harmful to the plaintiff, and in fact could materially improve his condition.
“ ‘4. The facts are clearly established to the effect that at the time of his application for work with defendant company, and at the time of the pre-employment physical examination given him as a part of regular company policy, this plaintiff deliberately misled the company and the examining physician with respect to the previous injury of almost identical nature which had been suffered by him several years previously to the accident complained of in this law suit; that the plaintiff arbitrarily refused to give the examining physicians to whom he was sent by the defendant company any information with respect to this prior existing disability; that the plaintiff had settled his claim for this previous accident and alleged disability with another company, and at that time had taken the position that he was totally and permanently disabled thereby; and, in short, that all of these actions on the part of the plaintiff should serve as the basis of an equitable estoppel against his claim in this particular instance.’ ”
“Defendant pitches his defense as to the first and fourth points on the ground that the plaintiff is absolutely unworthy of belief; that in effect plaintiff planned and stated this accident for the purpose of collecting compensation. To substantiate this, defense counsel has pointed to the following and other numerous examples where Mr. Johnson deliberately gave false information.
“(1) Mr. Johnson himself admits that he misinformed Dr. Saint in giving his age as 42 when in fact he was SO years old at the time of his pre-employment physical.
“(2) This Court finds as a fact that plaintiff deliberately refused to report to Dr. Saint during the pre-employment physical two of his prior injuries and workmen’s compensation settlements.
“(3) This Court finds as a fact that Mr. Johnson deliberately misled Dr. Banks by failing to report two of his previous disabling accidents.
“(4) This Court finds as a matter of fact that Mr. Johnson deliberately misled Dr. Kingsley by failing to report two of his previous disabling accidents.
“(5) This Court finds as a matter of fact that Mr. Johnson deliberately misled Dr. Reid by failing to report two of his previous disabling accidents.
“(6) This Court finds as a matter of fact that Mr. Johnson deliberately misled Dr. Kirgis by failing to report two of his previous disabling accidents.
“(7) This Court finds as a matter of fact that Mr. Johnson deliberately misled Dr. Sutton by failing to report two of his previous disabling accidents.
“(8) This Court finds as a matter of fact that Mr. Johnson deliberately misled Dr. Pollard by failing to report two of his previous disabling accidents.
“(9) A few days prior to the trial defendant using the discovery law, took Mr. Johnson’s deposition, and the record shows that at the trial Mr. Johnson changed his testimony on the very important issue as to the effect of an injury which occurred in 1951 which caused similar injuries to those which are the basis for this suit. This injury was the subject of a workmen’s compensation suit filed in 1951 and compromised in 1952.
“(10) Mr. Johnson admits a conviction for making whiskey which resulted in a sentence of several months in the Parish jail.
“(11) -Mr. Johnson admits that he was discharged from a job in the laundry at Camp Polk because of gambling and that he was barred from government work for a period of 12 months.
“(12) Mr. Johnson’s testimony is at variance with that of Earl LaFleur of Ville Platte, Louisiana, an employee of the Calcasieu Paper Company, Inc. on the point of the taking of a statement from Mr. LaFleur and this Court without reservation believes the statement of Mr. LaFleur.
“All of the above inconsistencies simply cannot be explained by the statement that Mr. Johnson does not understand the questions. The plaintiff impressed me while he was testifying and again when I reread his testimony with the fact that, although uneducated, he is an intelligent individual. A reading of the doctor’s depositions will disclose that this plaintiff also impressed three prominent neurosurgeons with his ability to explain himself.
“Notwithstanding all of these instances which as a group must have the effect of discrediting the plaintiff and rendering his testimony unworthy ■ of belief, the fact remains that the plaintiff has much testimony in the record to substantiate his claim that an accident occurred and that he is presently disabled.
“In this connection it is important to review the testimony given by Mr. A. A. Cavanaugh, who adjusts workmen’s compensation matters on behalf of the defendant, when he testified by deposition and on cross examination as follows:
“ ‘Q. As far as you know, was he a fairly regular employee or was he one that worked a day and missed a week? A. Regular.
“ ‘Q. Do you know that he was examined or given a pre-employment physical examination by your company physician before he went to work. A. Yes, sir.
“ ‘Q. He was. And I believe he was passed at that time. A. That’s correct.
“ ‘Q. Now, do you have a copy of that physical examination report before you? A. Yes, sir.
“ ‘Q. Would you let me see it just a moment. Mr. Cavanaugh, I note from this report that you have just handed me that Dr. Saint on May 1, 1953, found that it was his opinion that Mr. Johnson could do a reasonable day’s work. A. That’s right.
“ ‘Q. And, therefore, passed him to go to work. A. That’s right.’ * * *
“ <q. * * * Now, Mr. Cavanaugh, I believe that your company did pay compensation to Mr. Johnson as a result of this accident from May 25, 1955, until January 12, 1956. Would that be correct? A. May 25, 1955, through January 12, 1956.
“ ‘Q. And at that time you terminated compensation because your doctors thought he could go back to work or for reasons of your own. A. That is correct.
“ ‘Q. Mr. Cavanaugh, I believe that during the time that you were paying compensation that, as far as you were concerned, even though the payment of compensation is not an admission of liability, you felt as though that was a legitimate claim, did you not. A. For a time I did.
“ ‘Q. And that only after your doctor said that he thought he was able to return to work did you take the position that he should not be paid * * * A. That’s right.’ ”
“Another matter which is important to this case is the fact that plaintiff is only 5' 6" tall and usually weighs approximately 130 pounds. This physical fact makes it likely that Mr. Johnson could suffer the accident exactly as alleged by him.
“On May 23, 1956, plaintiff went to work at 6:00 A.M. He was not injured until approximately 9:00 A.M. While it is possible that plaintiff injured himself at some time other than while employed, the record in this case leaves me with the impression that when plaintiff came to work on the morning in question he was physically able to do the work. His fellow employees do not even suggest that Mr. Johnson was disabled during the three hours he worked on May 25, 1955 and prior to the alleged occurrence of the accident. In this connection it is significant to note that plaintiffs fellow employees were called as witnesses on behalf of the defendant. There is no question but that plaintiff was disabled after May 25, 1955.
“It is therefore, this court’s opinion that although the plaintiff is unworthy of belief, the record shows that he sustained an accident in the course and scope of his employment with the Calcasieu Paper Company, Inc. If there could be any doubt about this conclusion, it is entirely removed by a review of this Court’s opinion in the case of Fee v. Calcasieu Paper Company, Inc. together with the opinion of the First Circuit Court of Appeal in the same case which appears at 89 So.2d 434.
“The three neurosurgeons, Dr. Homer D. Kirgis, from Ochsner Clinic, New Orleans, Louisiana, Dr. Claude Pollard, of Houston, Texas and Dr. John B. Sutton of Shreveport, Louisiana, each testified that in their opinion plaintiff was presently disabled from performing manual labor and that this disability would continue for an indefinite period. Of course, their opinion is subject to question because of the fact that Mr. Johnson misled each of them in setting forth his history of prior back injuries. Each of these doctors testified that the patient’s history and subjective complaints were important in the forming of their opinion. * * * At the same time the opinion of these neurosurgeons was. not changed after they were apprised by opposing counsel of the possibility of prior similar injuries. Since plaintiff consulted three neurosurgeons, it is significant to note that defendant did not see fit to have Mr. Johnson examined by any neurosurgeons. As to Dr. T. E. Banks and Dr. Daniel Kingsley, both orthopedic surgeons of Alexandria, whose opinions were to the effect that plaintiff had recovered, it is noted that both of them hedged by stating, in effect, that Mr. Johnson was only able to work as well now as he could immediately prior to the accident. They made it clear to this Court that prior to the May 25, 1955 accident Mr. Johnson’s back was one that would not have passed for hard manual labor.
“This Court is of the opinion that Mr. Johnson is disabled from performing manual labor and that this disability will last for an indefinite period.
“Defendant bases its third defense on the fact that Mr. Johnson was returned to duty by Drs. Banks and Kingsley and refused to cooperate. It was Dr. Banks’ recommendation that Mr. Johnson return to light duty. On January 20, 1956, Mr. Johnson returned to the Paper Company and was assigned to his old job with the understanding that Mr. Bloodworth who was replacing the plaintiff would also be doing the same work. There is a great deal of testimony in the record showing that in the opinion of defendant’s employees who were working that shift in positions where they could see, plaintiff did not do any work. And further that the plaintiff did not complain of any pain. As a fact Mr. Bloodworth is the one in the best position to know exactly what the plaintiff did. Plaintiff and Mr. Blood-worth both testified that the plaintiff did lift two or three, nine inch rolls and that plaintiff stated he could not do the work. Whereupon Mr. Bloodworth advised plaintiff to simply step aside so that Bloodworth could do the work by himself — and he did. This Court cannot attach a great deal of significance to the fact that plaintiff did not go around informing all of the workers of .his pain, for the reason that would certainly be urged by defense counsel and believed by this Court, that such declarations would be entirely self serving.
“It is well settled that a worker will not be required to perform his usual and customary duties when he would suffer pain and discomfort in so doing. Reed v. Calcasieu Paper Company, Inc. [La.App.], 80 So.2d 588. Considering Dr. Banks and Dr. Kingsley’s description of plaintiff’s weak back and further in the light of the neurosurgeon’s certain testimony that this man is disabled, it is not unreasonable to believe plaintiff’s complaints of pain. Considering this testimony it cannot be held that plaintiff’s present disability is due entirely to his arbitrary refusal to cooperate with the attending physicians.
“As to defendant’s fourth defense he is frank to admit that he knows of no case sustaining the defense of estoppel. The estoppel which defendant relies on herein, of course, is that Mr. Johnson is taking advantage of his own refusal to disclose the true facts first during his pre-employment physical and second to the physicians who testified in his behalf. Although the cáse of Peavy v. Calcasieu Paper Company, Inc. [La.App.], 70 So.2d 755 as one where plaintiff withheld information during his pre-employment physical and yet recovered, the instant case involves more fraud on the part of the claimant. At the same time considering the universally accepted mandate that the Courts are to liberally construe the workmen’s compensation act in favor of the employee, this Court cannot recognize the doctrine of estoppel to be used against an employee in the manner suggested by the defendant. Defendant has the opportunity of protecting itself from employees such as the plaintiff by conducting a thorough pre-employment physical and further, by conducting an investigation of its applicants for jobs.
“It is a well settled principle of law in workmen’s compensation cases that it is immaterial whether or not the plaintiff was suffering from a latent defect at the time of his employment insofar as his right to compensation is concerned. At section 232 of Malone’s Louisiana Workmen’s Compensation, it is stated—
“ ‘The courts have firmly established the principle that the employer must take the worker as he finds him. The worker who is abnormally susceptible to disability from an accident is entitled to the full protection of the compensation statute, even though the same accident would have caused little or no harm to a healthy worker. It is not important that the diseased or weakened condition might alone have eventually produced disability or death.’ ”
“For the above reasons plaintiff is entitled to compensation at the rate of $30.00 per week commencing with May 25, 1955, during the period of his disability, not to exceed 400 weeks, subject to credit for compensation paid through January 12, 1956, together with the reservation of plaintiff’s right to be refunded medical expenses necessary for his treatment up to a total of $1000.00, less, of course, those already expended for the treatment of the plaintiff. The fees of the physicians for testifying as expert witnesses should be assessed as costs in the following' amounts: Dr. Banks, $50.00 ; Dr. Kingsley, $50.00; Dr. Saint, $50.00; Dr. Reid, $25.00; Dr. Sutton, $35.00 (See Tr. pages 8 and 9); Dr. Pollard, $50.00; and Dr. Kirgis, $75.00. Further the defendant is to pay the costs of these proceedings. The fee of Wood & Jackson, Attorneys, is fixed at the sum of 20% of the compensation collected by the plaintiff as a result of this judgment not to exceed $1000.00.”

In addition to the opinion of the learned trial judge, we wish to state that although the defendant practically based its entire defense upon the proposition of plaintiff’s lack of credibility and particularly in that he failed to give a true history of former accidents and injuries to the physicians, the defendant only produced a report of Dr. Bradford of Houston, Texas, who examined plaintiff for a 1951 accident. While this report did show practically the same condition existing at that time, we cannot understand why the defendant would not have shown by this doctor and any others who examined plaintiff as a result of prior accidents and injuries that his condition subsequent to the accident of May 1955, which is the basis of his present suit, was no different than previously. The plaintiff produced as a witness Dr. Kirgis of Ochs-ner Clinic where plaintiff was examined in ’51 and he specifically testified as follows:

“Q. Well, would the 1951 injury be of any important clinical significance in this case? A. I felt that it was of importance, because I felt that this represented an aggravation of that injury.
“Q. Well, who treated him here or examined him here in 1951? A. He was examined by Dr. Duncan and by Dr. Echols.
“Q. Is Dr. Duncan still with the Clinic? A. Yes.
“Q. Is he a neurosurgeon or a neurologist? A. No, Dr. Duncan is an orthopedist.
“Q. Were x-rays made at the time of that injury? A. Yes.
“Q. Did you have the benefit of those x-rays in connection with your recent examination? A. Yes, sir.
“Q. Did you personally compare the x-rays taken at that time with the recent x-rays? A. I don’t recall that I did right now, but I usually do.
“Q. What I would like to find out, Doctor, is if there were any significant changes in the x-rays pictures, wouldn’t you consider that of significance in this case? A. Not insofar as it would alter my opinion regarding the fact that he has a compressed nerve root from an injured intervertebral disc.
“Q. Well, Doctor, you stated that the x-rays which you saw this time were one of the main objective things upon which you based this diagnosis. Now, wouldn’t it be significant as to whether or not there were any changes in the x-rays at this time and the x-rays in 1951? A. We know from both x-rays that the man has an injured intervertebral disc. He presents history and findings which mean that he has nerve root compression. The conclusion that one cannot avoid is that the nerve is again compressed by the defective intervertebral disc.
“Q. In other words, Doctor, I judge from your answer to that question that you feel that there is little doubt but what this man suffered a disc injury in 1951. A. The interspace was narrowed at that time, so that we know that the disc was injured.
“Q. So that, if his present complaints are attributable to an accident in May of 1955, in your opinion it constituted an aggravation of the already existing condition. Is that right? A. Yes, sir.” (Emphasis added.)

Counsel for plaintiff in brief asks that the fee of Dr. Kirgis be increased from $75 to $100, however, there is no answer to the appeal by plaintiff and we will not consider the request.

For the above and foregoing reasons the judgment of the District Court is affirmed.

      . In the cited case the plaintiff’s credibility was not destroyed as was plaintiff’s in the case at bar.


author: LOTTINGER, Judge.

text:
    Herbert RATIER v. Stanley W. GATES et al.
    No. 4425.
    Court of Appeal of Louisiana. First Circuit.
    June 4, 1957.
    Rehearing Denied June 28, 1957.
    C. W. Berry, Jr., Oakdale, for appellant.
    Louis Berry, Alexandria, for appellees.
   LOTTINGER, Judge.

This is a tort action wherein the plaintiff seeks to recover the sum of $2,500 for damages caused as a result of trespass to real estate. After setting forth that he is the owner of certain lots of ground in Oakdale, Louisiana, the plaintiff in his petition goes on to make the following allegations :

“3.
“That, your petitioner sold lots twenty-five (25) to twenty-nine (29) to the defendant, Stanley W. Gates and Robert Mace Brindley.
"4.
“That, on or around June 1950, the defendants, Stanley W. Gates, Mrs. Mary Osterland Gates, and Joel L. Stockman while operating the Stanley Gates Lumber Company as a partnership, took possession of lots thirty (30) and thirty-one (31) and used them to deposit trash 'and saw-dust from' the sawmill, which is located adjacent and contiguous to lots thirty (30) and thirty-one (31).
“5.
“That, the defendants did not obtain oral or written consent of the petitioner, who did not lease or sell this property to the defendants.
“6.
“That on or about July, 1953, the Stanley Gates Lumber Company was Incorporated.
“7.
“That the defendant, Corporation has continued the trespass on the petitioner’s property without his consent or permission.
“8.
“That your petitioner has notified the defendants on numerous occasions to remove this saw-dust and refuse off his lots, but without avail.
“9.
“That, this action of the defendants in depositing their refuse on the petitioner’s property and taking possession of it without his permission and consent, constitutes a trespass.
“10.
“That, the trespass by the defendants to lots thirty (30) and thirty-one (31) has prevented your petitioner from selling lots sixteen (16) through twenty (20).”

The damages allegedly suffered are itemized at $1,000 for the trespass to lots thirty and thirty-one and $1,500 for loss of profits because of failure to sell lots sixteen through twenty.

The defendants Joel Stockman and Mary Osterland filed a joint answer in the nature of a general denial and, alternatively, pleaded the prescription of one, three and five years. The defendants Stanley W. Gates and Gates, Inc. likewise filed an answer in the nature of a general denial and also alternatively pleaded the prescription of one, three and five years.

Following trial on the merits in the Court below, judgment was rendered dismissing the suit as to all defendants except Gates, Inc. which was cast for damages in the amount of $500. Following an application for a rehearing the judgment was amended to allow legal interest from Judicial demand rather than August 2, 1955 (the day the suit was filed), and the matter is now before us on an appeal taken by the defendant Gates, Inc. The plaintiff has neither appealed nor answered the appeal.

At first we were concerned with whether we had jurisdiction to entertain the appeal, but a reading of the record has. convinced us that the plaintiff’s demands, are considerably inflated (as will be pointed' out hereinafter), and therefore, we are-vested with appellate jurisdiction.

The trial judge rendered written reasons, for judgment wherein he observed, in part, as follows:

“Defendants Joel Stockman and Mrs. Mary Osterland Gates filed general denials. There was no evidence introduced which would even suggest that these two parties are responsible and, therefore, the suit is dismissed in so far as these two parties are concerned.
“Stanley W. Gates and the Gates, Inc. filed general denials and affirmatively alleged that prior to the trespass. Stanley W. Gates made a tentative deal to purchase the lots from the plaintiff;, that ‘temporarily there possibly was a. possession taken under this deal, but-that the said deal was never closed, and respondents immediately moved from said property, and leveled the-same.’ Defendants Stanley W. Gates- and Gates, Inc. alternatively plead prescription of one, three and five years.
“As of July 31, 1953, Stanley W. Gates conveyed his interest in the mill to the corporation, Gates, Inc. Therefore, any right of action against him prescribed on July 31, 1954. This action was not filed until August 2, 1955, therefore, Stanley W. Gates is relieved from all liability.
“The evidence conclusively shows that the defendants Stanley W. Gates and Gates, Inc. trespassed on plaintiff’s lots numbered 30 and 31 of the Herbert Ratier Subdivision to the Town of Oakdale, Louisiana. These lots are separated from five lots owned by the defendant (lots 25 through 29, inclusive) by a 60-foot street. The Lumber Mill owned first by Stanley W. Gates and then since 1953 by Gates, Inc. occupies these five lots. A blow pipe from the lumber mill was erected on these lots so that the sawdust was blown across the street and onto lots 30 and 31. Reference to the plat of survey which is filed in evidence as P-2 shows that a railroad track goes along the south edge of lots 30 and 31. The evidence further discloses' that many banding irons from box cars were dumped on lot 31. Although it was not conclusively shown that defendant or defendant’s agents placed these banding irons on plaintiff’s lot, there was no other reasonable explanation for their presence. This, however, is not sufficient proof to show that defendant placed the banding irons on plaintiff’s property. On December 31, 1954, Gates, Inc. stopped operation of its mill ánd, therefore, that would be the last day that sawdust was blown on plaintiff’s property. This action was filed August 2, 1955, within less than one year after the Gates, Inc. mill stopped operations. Since this trespass was a continuing trespass through December 31, 1954, the cause of action is not barred by one year prescription. Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 and cases cited therein.
“Since February, 1955, a great deal of sawdust has been hauled away from plaintiff’s property. Still there remains some 5 to 12 feet covering a good portion of plaintiff’s lots. The two lots in question were appraised at $250.00 each by Mr. W. E. Bacon, Manager of the Calcasieu-Marine National Bank in Oakdale. One of the witnesses testified that the sawdust could be pushed off plaintiff’s lots for a cost of $25.00. He did not explain where the sawdust could be pushed nor did he satisfactorily explain the method by which this operation could be handled. There is no question but that defendant well knew that it was trespassing on plaintiff’s property. It is also clear that plaintiff requested on three separate occasions that defendant remove the sawdust. To this date defendant has not heeded plaintiff’s request. This unlawful entry made by defendant on plaintiff’s premises constituted an offense for which the defendant is answerable in damages. See Revised Civil Code, Article 1934.”
* * * * * *
“Plaintiff contended that defendant’s trespass on lots 30 and 31 prevented him from selling lots 16 through 20 of the same subdivision. The plat (P-2) shows that these four lots are located to the north of lots 30 and 31 and are separated from the said lots by a street 60 feet wide. (See plat marked P-2, which was filed in evidence). The evidence showed that on some occasions the sawdust pile was burned which caused cinders and soot to blow on the neighboring lots and the smoke was obnoxious to surrounding owners. This being the case it was understandable that the trespass by defendant had some effect on plaintiff’s ability to sell, particularly lots 17 and 18 and possibly lots 16 and 19.”

The factual findings of the trial judge as to what transpired are amply supported by the record and the only question to be decided by us concerns the matter of •quantum. It is evident -from the trial judge’s reasons for judgment that in assessing the damages suffered by plaintiff he •took into consideration his ability to sell lots Sixteen through Nineteen. In this respect we think he erred, for the record contains the testimony of the plaintiff himself to the effect that he refused to sell Mr. Gates lots sixteen through twenty. His testimony in this respect is as follows:

“Q. Have you turned down any offers to sell that property? A. I have.
“Q. Then, actually, Herbert, isn’t it a fact that you have stated the opinion that you didn’t want to sell the property? A. To Mr. Gates.
“Q. Has Mr. Gates tried to buy it from you ? A. He tried to buy it.
“Q. Hasn’t he tried to buy it continuously for about five years ?' A. He tried.
“Q. And you have— A. I refused him.
"Q. You wouldn’t even make him a price? A. I wouldn’t even make him a proposition.
“Q. But, yet, you tell the court you lost $1500.00 because you couldn’t sell the property? A. I don’t know, you kind of got me crossed up on that.”
******
“Q. Then, actually, you have had an •opportunity to sell your property? A. To Mr. Gates.
“Q. Uh-huh, but you wouldn’t make bim a price at all ? A. No.
“Q. And you didn’t make him a price because you just didn’t want to sell it to him? A. Not to him.
“Q. Not to him. Yet, you lost '$1500.00 because of your inability to sell those lots? A. That’s right. That’s right.”

Omitting from consideration Lots Sixteen through Twenty, there is left only the question of the diminution of value of Lots Thirty and Thirty-one. A Mr. W. E. Bacon, manager of the Oakdale Branch of the Calcasieu-Marine National Bank testified that in his opinion the lots themselves were of a value of only about $250 each, a figure which is in line with evidence introduced concerning other lots in the neighborhood.

In view of the,above and foregoing we are satisfied that the award of the trial judge is excessive and should be reduced.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and the same is reduced to $250; in all other respects, to stand affirmed.

Judgment amended and as amended affirmed.