author: THOMAS, Justice.

text:
    James J. MEARS and Genevieve Mears, his wife, Petitioners, v. Jacob MAYBLUM, Respondent.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    Rehearing Denied July 24, 1967.

      Howard N, Pelzner and Dan G. Wheeler, Jr., Miami, for petitioners.
    Aronovitz & Aronovitz, Miami, for respondent.
   THOMAS, Justice.

In their complaint the petitioners describe a transaction between themselves on the one part and respondent on the other part which they claimed constituted a contrivance to circumvent the law against usury. They asked the court to impose penalties against the respondent, to award them a money decree for $3,150, to declare them sole owners of certain property and to declare void a warranty deed and agreement for deed.

Petitioners and respondent filed motions for summary decree and supported them with affidavits, or depositions. The chancellor entered a partial summary decree in which he held that the transaction was not infected with usury, and he retained jurisdiction for the purpose of resolving other questions, presented by the litigation, with which we are not presently concerned. Before discussing further the chancellor’s decree, we will undertake to digest the deal to which petitioners and respondent were parties. Inasmuch as all negotiations were conducted by James J. Mears on behalf of himself and his wife and by Jacob Mayblum on his own behalf, we will simplify to some extent our analysis by referring hereafter to the petitioners as “Mears” and the respondent as “Mayblum.”

Mears told Mayblum he wished to invest some money in property that would yield an income and Mayblum put Mears in touch with one Samuel Sklar from whom Mears eventually purchased the Treasure Island Apartments. The purchase price was $225,000. The property was encumbered by an outstanding mortgage of $135,000 which Mears assumed. The seller agreed to take for his interest $50,000 in cash, and a second mortgage for $40,000. Mears had only $38,000 and it was because of his need of $12,000 to make the cash payment that Mayblum got into the act. These two entered into a memorandum agreement containing a recital that Mears was contracting the same day to purchase the property, and that it was the desire of both that May-blum should buy a one-third interest at the time of closing, which Mears should have the option of repurchasing from Mayblum.

, Under the terms set out in the instrument Mayblum was to pay Mears for the third interest, in “advance” of the receipt of title by Mears from Sklar, the sum of $12,000, the precise amount needed by Mears to make up the cash payment. Immediately upon receipt by Mears of the deed from Sklar, Mears was to convey a third interest to Mayblum and Mayblum was, “simultaneously,” to give Mears the right to repurchase the one-third interest. It was stipulated that “Mears will agree to re-purchase” the one-third interest for $15,000 to be paid at the rate of $350 a month for eleven months and $11,150 on the twelfth month. Following these terms appeared the statement that Mears, in the event he decided at the end of the twelve-month period “not to retire and re-purchase” the interest of Mayblum by making the final payment, would have the “further option” of paying Mayblum the balance of $11,150 at the rate of $350 monthly with interest at ten per cent.

It is Mears’ contention that, in effect, all this meant that Mayblum lent Mears $12,000 talcing as security a third interest in property in which the buyer, or borrower, was to have a cash investment of $50,000, $38,000 of which was his own money, and that an attempt was made to bind the borrower to start repaying the loan at the end of the first month, and to continue for ten months afterward with the option only of extending the final payment and discharging it at the rate of $350 monthly with a handsome return to the lender of ten per cent in interest on these deferred payments.

It is well to give the relative dates of the four instruments reflecting the transaction. The memorandum agreement was signed 15 November 1955; it was put into more formal attire and called an agreement for deed 15 December 1955; Slclar delivered a deed conveying the whole property to Mears and his wife 16 December 1955; these grantees conveyed the one-third interest to Mayblum 17 December 1955.

We think the deed given by Mears and wife to Mayblum was an instrument designed to secure a debt and regardless of its title was a mortgage under the provisions of Sec. 697.01. That this was its true character is evident from a comparison of the dates of the agreement for deed and the deeds themselves. Markell v. Hilpert, 140 Fla. 842, 192 So. 392. In these circumstances to consider Mayblum a seller of land as distinguished from a lender of money requires credulity we do not possess. Mayblum’s goings on were an attempt, albeit a clever one, to reap profits from a usurious transaction.

Mayblum refers more than once to the option of Mears to repurchase the third interest. Although there was mention of an option in the memorandum of agreement, we have found no provision in the formal agreement for deed that supersedes it which resembles an option that Mears could or could not exercise. In the preliminary memorandum it was stated: “Mayblum will simultaneously [with the conveyance of a third interest by Mears to Mayblum] grant unto Mears, the right to re-purchase * * * and Mears will agree to re-purchase said interest” by paying the amount of $15,000 on the terms already related.

When this memorandum was translated into an agreement for deed it was provided that Mayblum was bound to sell, and Mears to buy, the third interest for the amount and on the terms we have already specified and that upon payment of $15,000 Mayblum would reconvey to Mears. It was expressly stated that if this amount should be paid by the end of the year, no interest would be charged but that Mears would pay interest at the rate of ten per cent on deferred payments beyond that .time if Mears chose to discharge the balance in installments, and it was provided in the instrument that if any payment should remain in default for 30 days the contract could be terminated at the option of Mayblum but that the parties could “exercise any remedies available to them in law or in equity * * Clements v. Leonard, Fla., 70 So.2d 840.

We repeat, for emphasis, that this agreement was executed the day before Sklar conveyed to Mears and two days before Mears conveyed to Mayblum.

Mayblum, obviously, was putting himself in the position of exacting usurious interest from Mears for advancing $12,000 so Mears could make the first payment on the property. This conclusion is justified by our decison in Burket v. Johnson, Fla., 61 So.2d 197, where we dealt with a transaction similar to the one involved in this case.

We are aware of no occasion to restate the law with reference to our refusal to interfere with findings of fact by a chancellor unless it appears that he has clearly erred. Our conclusion in this case is based on facts which are not in dispute and upon our construction of the four instruments we have described. We differ with the chancellor only upon questions of law. The circumstances surrounding the transaction between Mears and Mayblum and the instruments executed by these parties present an arrangement which we think was a “contrivance” to circumvent the statutes penalizing usury.

We revert to the decree. The chancellor first announced that the transaction between Mears and Mayblum was not usurious. He then observed that the memorandum agreement contained no “binding promise” that Mears would repurchase the one-third interest from Mayblum. This statement was accurate but in making it the chancellor did not taire account of the later agreement for deed. His next statement, that he did not know whether or not there was a subsequent option from May-blum to Mears but that this would “be dealt with subsequently” is fallacious for the same reason.

We have concluded from the record in this case that the chancellor had before him testimony and evidence sufficient for the entry of a final decree resolving all the issues, and that there was no reason to anticipate a subsequent “option” which, as the name implies, would be a privilege to buy and not an obligation to do so.

The chancellor further observed that if “the transaction required a construction that it was never anything but a loan from Mayblum to Mears, [he] would find that there was no wilful violation of the usury statute.” He did not indicate what statute he had in mind in his statement with reference to the lack of wilfulness. By Sec. 687.07 a penalty is imposed for lending money and wilfully and knowingly charging or accepting a “sum of money greater than the sum of money loaned, and an additional sum of money equal to twenty-five per cent per annum upon the principal sum loaned, by any * * * contrivance * * * directly or indirectly * * A person violating this statute must forfeit the principal and interest and is subject to criminal prosecution. (Italics supplied.)

The appellee seems not to have violated this law because the amount he was to receive was exactly the sum of the money loaned and twenty-five per cent interest, and not an amount greater than the sum of the loan and interest of twenty-five per cent per annum.

He did violate Sec. 687.03 making it unlawful to charge interest of more than ten per cent per annum by any “contrivance or device,” and should be penalized under Sec. 687.04 for the infraction. (Italics supplied.) Shorr v. Skafte, Fla., 90 So.2d 604.

We have not found in the record presented to us any bases in the pleadings or the evidence for the comment of the chancellor that if he had felt obliged to hold that the transaction was a loan he would have decided, in effect, that appellee was so ignorant of the usury laws that he should be excused if he had transgressed them.

The petition is granted and the partial summary decree is quashed with directions to enter a decree, in accordance with the views we have expressed, finally disposing of the litigation.

TERRELL, C. J., THORNAL, J„ and PARKS, Associate Justice, concur.

      . Statutory references relate to Florida Statutes 1965, and F.S.A.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bradford BIMONTE et al., Appellants, v. Sam ROSENFELD, Appellee.
    Supreme Court of Florida, Division B,
    June 14, 1957.
   PER CURIAM.

Affirmed.


text:
    Al GOLDSTEIN et al., Appellants, v. Richard B. STONE, Appellee.
    No. 57-5.
    District Court of Appeal of Florida, Third District.
    July 22, 1957.
    H. Irwin Levy, West Palm Beach, for appellants.
    Patton & Kanner, Miami, for appellee.
   PER CURIAM.

We have examined the record and the briefs of counsel in this cause and heard oral argument at the bar of this Court. It is apparent to the Court upon perusal of the record that the Chancellor below based his findings upon conflicting evidence. We follow the rule so often enunciated by the Supreme Court of this State that the findings of a Chancellor based upon conflicting evidence will not be disturbed unless clearly shown to be erroneous. Cobb v. Cobb, 82 Fla. 287, 89 So. 869; Grantham v. Grantham, 140 Fla. 120, 191 So. 197; Peterson v. Plancock, 146 Fla. 410, 1 So.2d 255; Monyak v. Monyak, Fla., 43 So.2d 903; Town of Howey in the Hills v. Graessle, Fla., 57 So.2d 422, and Loew v. Friedman, Fla., 80 So.2d 672. We find no reversible error in the record and therefore conclude that the cause should be, and it is hereby, affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


author: CARROLL, CHAS., Chief Judge.

text:
    Lewis A. VANDERCAR, Appellant, v. Evelyn DAVID, Appellee.
    No. 57-21.
    District Court of Appeal of Florida, Third District.
    July 22, 1957.

      Hill, Welsh, Cornell & Ross, Miami, for appellant.
    Britton, Hodges & Hyman, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

Appellant was the defendant in an action in the Circuit Court in which the appellee, as plaintiff, obtained a verdict and judgment for $3,000 for injuries resulting from a fall alleged to have been caused by a dog owned by the appellant. In this opinion the parties will be referred to from time to time as they appeared in the lower court.

The defendant admitted owning the dog, and in defense pleaded contributory negligence and assumption of risk, the latter being stated in the answer as follows: “That at the time and place and under the conditions alleged, the plaintiff by her own acts or actions in playing with or exciting the said dog, assumed the risk of the result reasonably attributable thereto.” Those affirmative defenses were eliminated by an order granting a motion to strike them.

The case went to the jury on the issue of whether the defendant’s dog caused the plaintiff’s fall. The evidence on that issue included some facts of a kind which could have been relied on to establish assumption of risk by the plaintiff, through inciting and provoking or inducing the dog’s playful conduct which caused her to fall.

The question here, then, is whether the defenses of contributory negligence or assumption of risk are available to a dog owner who is sued for injury to a person caused by his dog, other than by biting.

The first statute imposing liability on a dog owner read:

“Owners of dogs shall be held liable for damages to persons and stock killed or injured by their dogs.” Rev.St.1892, Sec. 2341.

The language was changed, as shown by Section 3142, Gen.St.1906, and still appears, as Section 767.01, F.S.A., as follows:

“Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.”

In 1949 the legislature enacted Chapter 25109, Laws of Florida, now Section 767.04, F.S.A., as follows:

“767.04 Liability of owners
“The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; Provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog.’ ”

This 1949 act was considered by the Supreme Court, and construed with relation to the earlier act, in the case of Romfh v. Berman, Fla.1951, 56 So.2d 127, 128, where the Court said:

“The title to Chapter 25109 is ‘An Act to Provide for the Recovery of Damages by Persons Bitten by Dogs and Creating a Liability of the Owners of Such Dogs.’ When this title is read with the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law.”

By its express wording the 1949 Act, Section 767.04, F.S.A., is concerned with a dog owner’s liability for dog bites, but the instant case involves an injury other than by biting.

Appellant points to the language we have quoted above from Romfh v. Berman, supra, and contends it holds that the 1949 act, expressly allowing defenses, is applicable in the case of an injury of this kind, as well as in a dog bite injury.

Appellee argues that the 1949 act applies only to dog bite damage; that the Romfh case dealt with a dog bite injury and that the Supreme Court’s ruling above quoted should be considered as holding that it repeals Section 767.01 only as to dog bite damage, leaving Section 767.01 in effect for other injury by dogs; and that under Section 767.01 the liability imposed is absolute and precludes the use of the defenses of contributory negligence or assumption of risk.

We are not required to pass upon the conflicting contentions of the parties as to whether or not the 1949 act has superseded the earlier act for injuries by dogs other than by biting, because even under the latter, Section 767.01, the defense of assumption of risk can be raised.

Section 767.01 eliminated scienter as a necessary element for liability. Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196; Romfh v. Berman, supra. But the fact that liability is imposed by statute, and not based on negligence, does not require rejection of an offered defense that the injured party incited and encouraged the dog’s action which caused injury.

The rule established by the authorities is that while liability of an owner of a dog is based on an obligation as insurer rather than on negligence, and contributory negligence as such is not a defense, nevertheless, if an injured party unnecessarily and voluntarily puts himself in the way to be hurt, knowing the probable consequences, he may be deemed to have assumed the risk and to have induced his injury.

In Wojewoda v. Rybarczyk, 246 Mich. 641, 225 N.W. 555, speaking of a statute imposing liability on dog owners for injuries by their dogs, the Michigan Court said:

“This statute eliminates the necessity which existed at common law of averring and proving that the dog had vicious propensities * * *, and the owner’s knowledge thereof. * * *
“The basis of liability is not negligence in the manner of keeping and confining the animal but in keeping him at all. The owner is liable under this statute, even though the dog is taken out of his inclosure [sic] by his servants in disobedience of his orders.
* * *
“It is, however, a defense if the injured party voluntarily brought on the injury himself, with the full knowledge of its probable consequences.”

Smythe v. Schacht, 93 Cal.App.2d 315, 209 P.2d 114, 117, involved a statute which imposed liability on the dog owner without expressly authorizing any defense, and which was worded as follows:

“The owner of any dog which shall bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness. * * * ”

Under the particular facts of that case it was held that the defense of assumption of risk was not established, but the Court recognized the right to assert the defense, and said:

“ * * * We entertain no doubt that in adopting the statute here in question the legislature did not intend to make the liability of the owner absolute and render inoperative certain principles of law such as assumption of risk or wilfully inviting injury, which over a long period of time have been established in our system of jurisprudence. While the Dog Bite Statute does not found the liability on negligence, good morals and sound reasoning dictate that if a person lawfully upon the portion of another’s property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.
“In Vol. 3, Corpus Juris Secundum, Animals, § 150, page 1254, it is said: ‘Contributory negligence will defeat recovery in an action for injuries caused by a domestic animal where negligence is the gist of the action; but, where it is not, more than ordinary contributory negligence is necessary to relieve the defendant from liability.’
“And on page 1255 of 3 C.J.S., § 150, we find the following: ‘It must be established that the injury is attributable not to the keeping of the animal but to the injured party’s voluntary act in putting himself in a way to be hurt, knowing the probable consequences thereof so that he may fairly be deemed to have brought the injury on himself; but if this is shown recovery will be defeated.’ ”

This principle that a person can not make his own negligent or wrongful act the ground for recovering damages from another has received general recognition and application in cases of this kind. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Kelley v. Killourey, 81 Conn. 320, 70 A. 1031; Muller v. McKesson, 73 N.Y. 195, 29 Am.Rep. 123; Sandy v. Bushey, 124 Me. 320, 128 A. 513; Peck v. Williams, 24 R.I. 583, 54 A. 381, 61 L.R.A. 351; Schraeder v. Koopman, 190 Wis. 459, 209 N.W. 714; Hughey v. Fergus County, 98 Mont. 98, 37 P.2d 1035; Gagnon v. Frank, 83 N.H. 122, 139 A. 373; Colby v. Lee, 83 N.H. 303, 142 A. 115, 688; Sawyer v. Lund, 231 Iowa 1393, 4 N.W.2d 408; Terpstra v. Schinkel, 235 Iowa 547, 17 N.W.2d 106; Grummel v. Decker, 294 Mich. 71, 292 N.W. 562; Heidemann v. Wheaton, 72 S.D. 375, 34 N.W.2d 492. Cf. City Ice Delivery Co. v. Goode, 228 Ala. 648, 154 So. 775. See 3 University of Florida Law Review, 98, “Torts: Dog Owner’s Liability in Florida” (1950) at pp. 100-101 and 104-105.

Ohio cases are to the contrary. Siegfried v. Everhart, 55 Ohio App. 351, 9 N.E.2d 891; McIntosh v. Doddy, 81 Ohio App. 351, 77 N.E.2d 260; and Hill v. Skinner, 81 Ohio App. 375, 79 N.E.2d 787. But that exception detracts little from the influence of the otherwise general acceptance of this rule.

Accordingly, the judgment appealed from is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

HORTON and PEARSON, JJ., concur.


text:
    Sadie B. DVOJACK, Appellant, v. Louis John SCHNEIDER, Appellee.
    No. 57-4.
    District Court of Appeal of Florida, Third District.
    July 22, 1957.
    Daniel Sepler, Hialeah, for appellant.
    Carey & Papy, Miami, for appellee.
   PER CURIAM.

Affirmed.

CARROLL, CHAS., C. J., and 1ÍOR-TON and PEARSON, JJ., concur.


author: LOTTINGER, Judge.

text:
    John Macon OSWALT v. TRANSCONTINENTAL INSURANCE COMPANY OF NEW YORK.
    No. 4472.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Durrett, Hardin & Hunter, Baton Rouge, for appellant.
    Iddo Pittman, Jr., Hammond, for appel-lee.
   LOTTINGER, Judge.

This is a suit for property damages resulting from an intersectional collision in the City of Hammond on March 9, 1956. The petitioner is John Macon Oswalt, the owner of one of the vehicles. The defendant is Transcontinental Insurance Company of New York, the insurer and sub-rogee of Susie M. Jacobsen who was driving the other vehicle. The Lower Court gave judgment in favor of petitioner and against defendant in the amount of $256.17. The defendant has appealed.

The record shows that the accident occurred at the intersection of Pine and Robert Streets in the City of Hammond, Louisiana, at about 11:00 o’clock a. m. on March 9, 1956. Prior to the accident, Mrs. Oswalt, the driver of petitioner’s automobile, was driving north on Pine Street. Miss Jacobsen was driving west on Robert Street. Neither of the said streets have a stop sign, and both are hard surfaced and they each have a width of approximately 20 feet. The weather was clear, and, although there were a few trees and shrubs at the intersection, the witnesses testified that the intersection could not be considered a blind one.

Both drivers claim that they were driving at about 20 to' 25 miles per hour prior to the collision. Mrs. Oswalt does not remember whether or not she looked for oncoming traffic prior to entering the intersection. She admits she did not stop prior to entering the intersection. She admits she never saw the Jacobsen car until just prior to the impact and at a time when it was less than a car length away. She has no explanation for not seeing the Jacobsen car. Mrs. Oswalt further admitted that when she saw the Jacobsen car she stepped on the accelerator. Miss Jacobsen stated that when she first saw the Oswalt car that they had both “just started into the intersection.” The Jacobsen car struck the Oswalt car on the right rear fender and door. As a result of the collision, the Oswalt car was turned around about 180 degrees and came to rest facing southeast with its back wheel against the west curb of Pine Street, and at a distance of some 10 to 20 feet from the point of impact. The Jacobsen vehicle came to rest at the northwest corner of the intersection, with its front wheels on a neutral ground and its rear wheels in a ditch, and facing in a northerly direction. The evidence indicates that the Oswalt car was in the northern half of the intersection at the time of impact, and that the front end of the car was probably outside of the intersection.

It was stipulated by council that the damages to the Oswalt car was in the sum of $256.17, and that the damages to the Jacobsen car was in the amount of $698.50. The petitioner sues for his damages, the defendant answered denying any liability and entered a reconventional demand for its damages in the amount of $698.50. The Lower Court awarded damages to petitioner and dismissed the reconventional demand of the defendant. The defendant has appealed.

As usual in an intersectional collision of this type, one of the parties claim the right of way by virtue of its preemption of the intersection, while the other party claims it had the right of way by virtue that he was coming from the right. A similar situation prevailed in Gautreaux v. Southern Farm Bureau Casualty Co., La. App., 83 So.2d 667; Commercial Credit Corp. v. Serpas, La.App., 94 So.2d 83, and in Jacob v. Treas, La.App., 94 So.2d 153. These cases are very similar to the present one.

The law of our state (LSA-R.S. 32:237, subds. A and B) is to the effect that when neither street has been specifically designated a right of way street, and when two vehicles approach or enter the intersection at approximately the same time the car approaching from the right shall be favored and shall have the right of way. This rule, in this particular case, would give the defendant the right of way. Another rule of our state is that the person who preempts an intersection shall have the right of way. This rule, however, is based upon the fact that at the time of entering the intersection, the party had a reasonable possibility of clearing the right of way without interfering with oncoming traffic. Certainly under the facts of this case the right of preemption does not apply to the plaintiff. In the Gautreaux case this court stated as follows:

“In the everyday world, ordinarily prudent motorists on the main thoroughfare do not slow before each corner and attempt to peer down the side-streets, but instead concentrate most of their attention on the path ahead, relying on their legal 'right of way’. Legislative provisions for right of way are to facilitate the passage of traffic in this congested twentieth century world. If to accomplish this purpose, and in realization that even observing the path ahead may tax the ordinary motorists’ powers of sustained observation, the legislature has relieved the motorist on the right of way street of a duty ordinarily to' slow before each intersection (and, consequently, of a duty to take this attention from the path ahead by darting glances each way down the intersecting streets), appellate courts should not supply artificial standards in an unrealistic attempt to allocate damages after an accident has occurred.” [83 So.2d 669.]

Under the facts of this case, as the Jacobsen automobile was approaching from the right, it was afforded the right of way, Miss Jacobsen, therefore, was given the legal right to presume that any motorist approaching the intersection from her left would respect her right of way.

On the other hand, under the right of preemption, a motorist approaching an intersection has the right of way over oncoming traffic only if the motorist exercises the necessary precautions in determining that he can enter and have a reasonable possibility to cross the intersection safely. We have many times held that the right of preemption does not prevail in favor of a motorist entering an intersection first in a careless and reckless manner.

From the facts of this case, it is apparent to this court that Mrs. Oswalt entered the intersection without regard to oncoming traffic. She testified that she does not remember whether or not she looked to see if anyone was approaching. Had she looked, we feel sure that she would have remembered. She also testified that upon noticing the approaching vehicle, she speeded up in an attempt to get out of the way, which is probably the reason the impact took place in the northern part of the intersection. Although she claims that the Jacobsen car was approaching at an unlawful speed, the facts do not bear this out. Miss Jacobsen testified that she was driving slowly, that she had only been on the street about one block, that she did not have time to apply her brakes prior to the impact, and the relatively slight damages, together with the short distances traveled by each vehicle after the accident, indicate that both drivers were driving at a slow rate of speed.

We feel that under the circumstances of the case, Miss Jacobsen was correct in relying on her right of way, and upon assuming that less favored traffic would respect her right of way. Under the holding of the cases above cited, it is our opinion that the proximate cause of the accident was the negligence of Mrs. Oswalt in entering the intersection in the face of oncoming favored traffic.

For the reasons assigned, the judgment will be reversed and there will be judgment on the reconventional demand in favor of Transcontinental Insurance Company of New York and against John Macon Oswalt in the sum of $698.50, with legal interest from date of judicial demand. All costs to be paid by petitioner.

Judgment reversed.


author: JANVIER, Judge.

text:
    Benny BARTHOLOMEW et al. v. MARQUETTE CASUALTY COMPANY et al.
    No. 20802.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Gamble & Gamble, Harry P. Gamble, III, New Orleans, for plaintiffs-appellants.
    James J. Morrison, Morrison & Newell, New Orleans, for defendants-appellees.
   JANVIER, Judge.

At about 7:30 o’clock on the night of April 9, 1955, as Mrs. Benny Bartholomew was driving a Ford automobile belonging to the community which existed between herself and her husband, it crashed “head-on” into the front of a DeSoto car belonging to Henry Roberts, which had “stalled” and was standing, facing in the opposite direction, on the Lafitte highway which, in the Parish of Jefferson, runs from the Mississippi River to Lafitte, a settlement on Bayou Barataría.

The Bartholomew car was practically demolished and Mrs. Bartholomew sustained physical injuries. Mr. and Mrs. Bartholomew brought this action against Henry Roberts, the owner of the stalled DeSoto car, Lonie Malone, the father of the minor, Lonie Malone, Jr., who was in charge of the Roberts’ car, and also against Marquette Casualty Company, the liability insurance carrier of Roberts, Mrs. Bartholomew praying for solidary judgment in the sum of $2,000 as recompense for her physical injuries, and Benny Bartholomew praying for solidary judgment for $2,113, $63 of which is alleged to represent the cost of medical treatment to his wife and $2,050 of which is alleged to represent the value of the Ford car which allegedly was damaged “beyond economical repair.”

Plaintiffs allege that the accident was caused by the negligence of young Malone, who backed the Roberts’ DeSoto from a private driveway on to the highway, and that the young man was guilty of the following acts of negligence: failing to keep a proper lookout; allowing the car to stop and remain stationary on the highway; turning out the lights of the car while it was dark and raining; failing to warn Mrs. Bartholomew by placing flares or danger signals on the highway, and in backing out into the highway without looking to see if it was clear.

Defendants answered, admitting the occurrence of the accident, the ownership of the DeSoto by Roberts; that that car was in charge of young Malone and that Marquette Casualty Company was the liability insurance carrier of Roberts.

All defendants denied that there had been any fault on the part of young Malone, and averred that the accident had been caused solely by fault of Mrs. Bartholomew, who was driving the Ford car which crashed into the stationary DeSoto car, and that her negligence consisted of the following acts: driving at an excessive rate of speed around a curve; failing to keep a proper lookout; failing to observe the DeSoto car in the highway; and failing to pass to the side.of the DeSoto car “where there was plenty of room on the highway.” Defendants, in the alternative, specially pleaded contributory negligence in Mrs. Bartholomew.

There was judgment .dismissing the suit of plaintiffs, and they have appealed.

There is very little dispute over the facts. Mrs. Bartholomew was operating the Ford, which was going in a general southwesterly-direction or towards Lafitte which is away from the Mississippi River. She was accompanied by her sister, Mrs. Elta Colom-bel, and her sister-in-law, Mrs. William Dinnett.

Young Malone was alone in the Roberts car. He decided to drive that car towards the Mississippi River which was in the direction opposite that in which the Bartholomew Ford was going. To do this it was necessary that he back the car on to the road and then turn it forward towards the Mississippi River. He backed the car from the driveway into the highway and says that, just before entering the highway, he looked carefully in both directions and saw no cars approaching. It is conceded that, at that time, the headlights of the DeSoto car were burning. Pie then backed the DeSoto across the first half of the highway and straightened the car into the direction in which he wished to proceed. At that time the motor stalled and the car remained stationary on the highway.

Malone says that he directed his attention to an attempt to start the car but that, when the car had been standing from 20 seconds to half a minute, the Barthlomew car, which he did not see, approached at high speed and crashed almost headlong into the right front portion of the DeSoto, the right front portion of the Bartholomew car skidding into the DeSoto and then “she went in the ditch and hit the pole.”

Mrs. Bartholomew concedes that shortly before the collision the speed of her car had been “about fifty-five”; that it had rained all day and that the street was wet. She says that she was coming around the curve and that while her car was in the curve she saw lights in the driveway and reduced her speed to “about forty, I would say, maybe slower” She says that then she saw no lights of the other car and, because of the dark color of the other car, she did not see it. She says that after striking the De-Soto she lost control of her car and “it skidded off and went in the ditch and hit the telephone post.”

Young Malone says that the lights on his car were burning and in this he is corroborated by five witnesses, four of whom it is true were members of his family, the fourth of whom, however, Aubin Pitre, was a disinterested passerby. A highway official who arrived later said that when he reached the scene the lights were not burning and that one of them was broken.

We are not particularly concerned with the possible negligence of young Malone. If the car was in good working condition and if, when he backed the car into the highway, his lights were burning and he saw no other car approaching, he was not negligent in doing what he did, but whether he was or was not, there is no doubt whatever of the contributory negligence of Mrs. Bartholomew.

It is conceded that after she completed the curve her car was at least 125 feet from the stalled car and yet she did not see it and did not stop until it was too late.

In oral argument counsel for plaintiff conceded that the evidence showed beyond any doubt that the lights of the stationary car were burning as Mrs. Bartholomew approached it, and he argued that the cause of the collision was the fact that the DeSoto was on the wrong side of the highway and that the headlights which faced her “confused” Mrs. Bartholomew. If that is what happened then she was undoubtedly negligent in continuing at a speed of approximately 40 miles an hour directly into the headlights of the car which faced her.

The sole proximate cause of this accident was the negligence of Mrs. Bartholomew.

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.


author: GLADNEY, Judge.

text:
    Roy E. FINLEY, Plaintiff-Appellant, v. HARDWARE MUTUAL INSURANCE COMPANY et al., Defendant-Appellee.
    No. 8677.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Granted Oct. S, 1957.
    Booth, Lockard, Jack & Pleasant, Shreveport, for appellant.
    Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.
   GLADNEY, Judge.

Plaintiff, Roy E. Finley, on August 14, 1956, instituted this action to recover workmen’s compensation from his former employer, Williamson Motors, Inc., and its insurer, Hardware Mutual Insurance Company. From a judgment in favor of the defendant, rejecting his demands, plaintiff has appealed.

The most serious issue presented is whether the employee’s disability manifested at the time of trial bears a causal relation to an accident sustained by Finley on December 1, 1955, while in the employment of Williamson Motors, Inc. The injury then received, diagnosed as an acute back sprain, was recognized by the insurer of the motor company as incurred in line of duty and workmen’s compensation was paid through January 17, 1956. On January 2, 1956, plaintiff was hired by Blaine Chevrolet Company of Jefferson, Texas, and worked continuously and apparently without discomfort until he injured his back after working hours on June 15, 1956. On June 17 and 22, 1956, following medical examinations, a diagnosis was made of a herniated or protruding disc with a totally disabling back condition.

Counsel for appellant contends the December 1st accident so weakened plaintiff’s back the injury from the second accident of June 15th was but a development of, and consequence or result of the first injury, and hence defendant is liable. The defense argues Dr. Garrett repeatedly examined the employee, discharged him from further treatment as of January 15th, and reported him being without disability or permanent injury; that for six months after January 2, 1956, Finley performed without diminution of earnings, and without favor, the same work to the complete satisfaction of the Blaine Chevrolet Company; and that all during this time he made no complaint to his employer or to any of his fellow employees of pain, handicap, or inconvenience. They say, further, plaintiff’s actions refute any claim of continuing disability, and assert the present disability was occasioned by the June 15th accident and is unrelated to the first accident.

Plaintiff, married, aged thirty-eight and of limited education, was and is an automobile mechanic by trade and had worked for Williamson Motors, Inc. over a period of years. On December 1, 1955, while engaged in loading a motor block assembly into a trunk of an automobile, plaintiff’s knee, slipped from its place of rest on the rear bumper of the automobile thus causing the weight of the block assembly to shift onto plaintiff’s left leg and back. Finley thereupon experienced pain in his lower back, but continued to work until December 7th, when he visited Dr. H. W. Garrett of Vivian, Louisiana.

Dr. Garrett made a complete physical and clinical examination. On December 16th he reported to the, employer’s compensation insurer a diagnosis of “no hernia, spasm of left recti muscles. Acute back sprain.” He further stated there was no permanent injury but the patient was still under treatment. A second report was sent on January 18, 1956, and discloses office visits on December 7th, 9th, 12th, 15th, 19th and 26th and on January 15th. The report recites the patient was discharged from treatment on January 15, 1956, and expressed the doctor’s opinion Finley was able to return to work on January 3, 1956. It also indicated under “Remarks”: “Since injury this patient has complained of soreness in region of left inguinal canal. Repeated examination has failed to demonstrate any hernia, weakness of internal ring or injury to cord structure. There is no varicocele, hydrocele or testicular enlargement.”

As of May 2, 1956, Dr. Garrett signed and forwarded to the insurance company two separate reports. The first of these, entitled “Surgeon’s Final Report and Bill” reflected an office visit from the patient on March 20, 1956, the original diagnosis of acute back sprain, the doctor’s bill, and further, it stated the patient was able to do the, same work as before injury and was then at work. Under “Remarks” it was noted: “Patient did not return for further treatment. We presume, he recovered.” The second report dated May 2, 1956, and labeled “Standard Form for Surgeon’s Report” recorded: “Case reopened 3/20/56. Treatment given: Salimph C, heat and B 12”. Under “Remarks” we find: “Patient did not return for further treatment.” The foregoing constitute all the reports furnished by plaintiff’s personal physician prior to the accident of June 15, 1956.

On January 2, 1956, appellant obtained a job as automobile mechanic with the Blaine Chevrolet Company of Jefferson, Texas, and commuted between Vivian, Louisiana, and Jefferson by automobile. No time was lost from his employment with this company due to any condition of health until after June 15th. The testimony of the officials and employees of the Blaine Chevrolet Company, including G. E. Blaine, James Charles Haggard, Wayne McCoy and Stirling Cooksie, uniformly shows that from January 2, 1956, until January 15, 1956, plaintiff performed all the duties of an automobile mechanic without disability and without a single complaint of pain. Wayne McCoy testified also that Finley appeared in very good spirits while he worked and from his observation he believed plaintiff did not perform his work with difficulty or in pain. These witnesses were constantly with plaintiff during each work day for a period of over six months.

On June 15th after working hours, plaintiff sought to salvage for his own use some old tires which had been cast off by the company and, while so engaged in handling these tires, he complained of having “felt a catch” in his back. On the next day Finley did not report for work, but on Sunday, June 17th, he went to Dr. Garrett’s home where he told the doctor that while bending over picking up an inner tube he got a “catch” in his back. Dr. Garrett testified without explanation the examination at that time indicated the same findings he had observed on the 20th of March. The patient was referred to, and reported to Dr. Ray King, an orthopedist, on June 22nd. Following his initial examination, Dr. King concluded the complaints of plaintiff were caused by pressure on the first sacral nerve root on the left side due to.a protruding intervertebral disc at the fifth lumbar level. He accordingly prescribed a Williams brace, which was secured the next day. Plaintiff continued to work for the Blaine Chevrolet Company until June 29th when he quit his job due to the condition of his back.

It is conceded, as indeed it must be, that as of the date of trial Finley was totally disabled. The important thing, however, is to determine if the first accident is related to such disability. The following recapitulation is apropos: Dr. Garrett considered the employee disabled by the first accident only until January 15, 1956; the insurer paid the employee workmen’s compensation through January 17, 1956; Finley began the same work with equal wages on January 2, 1956, with the Blaine Chevrolet Company; that he worked continuously thereafter without complaint of pain or physical handicap to a single employee with whom he daily worked; and on June 15, 1956, he hurt his back after working hours, and has been substantially unable to perform the duties of an automobile mechanic since that date.

In response to inquiry from counsel as to whether plaintiff’s condition at the time of trial was affected by the accident of December 1st, both doctors answered affirmatively. The answer, if true, would certainly indicate plaintiff had made out his case, but proof under the Employers Liability Act, even though not affected by certain technical rules of evidence and procedure, nonetheless must be grounded on conr-petent evidence. The answer to a hypothetical question where not based on proven facts affords but little assistance in ascertaining the truth.

The record clearly indicates Dr. King’s opinion of the connection between Finley’s present disability and the first accident is largely predicated on Finley’s statement to him of continuous back pain from December 1st. Dr. King responded to the following question by the court: “Could you tell by your examination at that time, Doctor, whether this man was hurt on December 1st or on some other date?” The witness answered: "No, I could not.” The testimony of Dr. King, therefore, insofar as it relates to any causal connection between the accident of December 1st and plaintiff’s disabling condition after June 15th has but little, if any, probative value. The repeated reports of Dr. Garrett to the insurer from December 16th to May 2nd show quite clearly over his own signature the opinion of the doctor to be that on May 2nd and prior thereto plaintiff was no longer disabled from the first injury.

Turning now to the lay evidence presented on Finley’s behalf, we find the effect thereof is insufficient to overcome the weight of the testimony to the effect that after the first injury plaintiff worked for more than six months during which period his fellow workers, with whom he constantly worked, were unable to detect any ' manifestation of pain or disability.

Total disability is defined in the Workmen’s Compensation Act, LSA-R.S. 23:1221(2) as disability to do work of any reasonable character. This has been interpreted by the courts as work of the same or similar description to that which the employee is accustomed to perform. Thus, where the employee resumes his usual trade after injury but not without pain, suffering and discomfort, he will be considered totally disabled. Coon v. Germany Iron Works, La.App.1955, 81 So.2d 83; Morrison v. Travelers Insurance Company, La.App. 1955, 79 So.2d 177; Fruge v. Pacific Employers Insurance Company, La.App.1954, 71 So.2d 625, affirmed 226 La. 530, 76 So. 2d 719; Johnson v. Cabot Carbon Company, Inc., La.App.1955, 84 So.2d 639. Likewise, he will be so classified if he cannot perform the kind of work he is trained to do, or customarily does, in the usual and customary way, without any serious impairment of his capacity to perform such work. Strother v. Standard Accident Insurance Company, La. App.1953, 63 So.2d 484; Mottet v. Libbey-Owens-Ford Glass Company, 1952, 220 La. 653, 57 So.2d 218. And, conversely, as in this case where, the employee has demonstrated that following an injury he was able to and did without pain, discomfort or handicap, perform the same work continuously for six months, the employee will not be considered disabled from that injury.

The record does not contain the reasons of the trial judge for rejecting Finley’s claim for compensation, but from a careful review of the record, and with full consideration of the contentions of appellant’s counsel, we find there is no manifest error in the ruling of which complained. The judgment from which appealed is affirmed at appellant’s cost.


author: TATE, Judge.

text:
    CITY OF BATON ROUGE, Plaintiff, v. C. L. KIPER, Defendant-Relator. In re Application of C. L. KIPER For Writs of Prohibition. Certiorari and Mandamus.
    No. 4479.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Nealon Stracener, Baton Rouge, for relator.
    R. Gordon Kean, Jr., City Atty., John V. Parker, Asst. City Atty., Baton Rouge, for respondent.
   TATE, Judge.

Applying to the supervisory jurisdiction of this Court in aid of its appellate jurisdiction, Art. 7, Section 2, La.Const., LSA, Putnam & Norman, Inc. v. Levee, 179 La. 180, 153 So. 685, defendant’s application for writs of certiorari, review, and mandamus is based upon the action of the Court below in recalling a previously issued order of appeal and in refusing to grant defendant either a devolutive or suspensive appeal herein. Hearing was held on the rule issued by us under our supervisory jurisdiction ordering the respondent court to show cause why the relief prayed for should not be granted.

On April 15, 1957, after hearing and application for rehearing, the District Court signed a judgment granting plaintiff City a preliminary injunction in accordance with the prayer of its petition. On April 24, 1957, defendant obtained an order of suspensive and devolutive appeal to this Court, the bond for which was fixed at $300. On May 6, 1957, plaintiff City moved that the order of appeal previously issued be recalled and set aside since the “defendant herein failed to perfect his appeal within the delays fixed by law”, which motion was tried and granted on May 20th.

Defendant then applied to this court for writs in aid of its appellate jurisdiction, urging upon the basis of the appeal bond filed by him on May 17, 1957 that the District Court was divested of jurisdiction to recall its previous order granting an appeal, citing Harnischfeger Sales Corp. v. Sternberg Co., 177 La. 373, 148 So. 440. For, as we reiterated recently in Hotel Donaldson Co. v. Anderson Hotels of Louisiana, La. App., 75 So.2d 884, ordinarily the trial court is divested of jurisdiction by the filing of the appeal bond in accordance with the order of appeal, except to test the sufficiency of the appeal bond and to forward the transcript to the appropriate appellate tribunal.

But defendant-relator’s argument overlooks the statutory provision governing appeals from the granting of, or failure to grant, preliminary injunctions, which is here applicable, LSA-R.S. 13:4070, providing in part: “* * * Any appeal, devolu-tive or suspensive, must be taken and bond furnished within ten days from entry of such order or decree, * *

Although on April 24th the defendant-relator obtained an order of appeal within ten days of the judgment dated April 15th granting the preliminary injunction, the appeal bond was not filed until May 17th, or not until 32 days after entry of the judgment. Aside from the specific provision in the applicable statute above-quoted, the law is well settled that an appeal is not perfected within the time prescribed by law when the appeal bond is not filed prior to the expiration of such time. Schneider v. Manion, 217 La. 118, 46 So.2d 58; Dickerson v. Hudson, 201 La. 915, 10 So.2d 700; Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 141; Lafayette v. Farr, 162 La. 385, 110 So. 624; Crichton v. Webb Press Co., 107 La. 86, 31 So. 648; Graves v. Merrill Engineering Co., La.App. 2 Cir., 148 So. 453.

Citing such cases, and dismissing an appeal as “absolutely null” where both order and bond were subsequent to the year permitted under Article 593, C.P., for devolu-tive appeals, in Arnold v. Arnold, 217 La. 362, 46 So.2d 298, our Supreme Court stated that “the appellate court does not acquire jurisdiction of appeals which have not been taken and perfected by the filing of bond within the prescribed time”, 46 So.2d 299.

Thus the trial court was not divested of jurisdiction by the present absolutely null attempted appeal and did not lack power to rescind the improvidently granted order of appeal. See also Vallee v. Hunsberry, 108 La. 136, 32 So. 359.

For the above and foregoing reasons, the rule previously issued herein is recalled, and relator’s application for writs of certi-orari, mandamus, and prohibition is denied.

Writs denied.


text:
    Isaac HANEY, Plaintiff-Appellee, v. Gladys DUNN, Defendant-Appellant.
    No. 4459.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Nealon Stracener, Baton Rouge, for appellant.
    Odom & Belanger, R. W. Williams, Jr., Baton Rouge, for appellee.
   TATE, Judge.

This case was previously transferred by us to the Supreme Court, 75 So.2d 901, 71 So.2d 363; but was transferred back. 231 La. 988, 93 So.2d 532.

Pursuant to plaintiff’s prayer, the District Court rendered judgment ordering partition in kind between plaintiff Isaac Haney and defendant Gladys Dunn of a 53-acre tract of land lying on Plank Road about 12 miles north of Baton Rouge. Defendant appealed from the judgment insofar as it recognizes plaintiff as owning a one-half interest in the tract in question. Defendant denies that plaintiff has any interest whatsoever in the property, and alternatively argues that plaintiff’s interest cannot exceed one-fourth.

On October 17, 1938 the tract in question was purchased by Oscar Planey, brother of plaintiff (Isaac Haney), during the existence of a marital community between Oscar Haney and Laura Hughes Haney. This marriage and community was dissolved by divorce on May 12, 1941. On September 27, 1943, Oscar Haney by cash sale sold the entire tract in question to Gladys Dunn, defendant-appellant. (Subsequently, Oscar Haney and Gladys Dunn were married.)

Plaintiff’s interest in the land is based upon his purchase on October 5, 1943 of an undivided one-half interest from Laura Haney, the first (divorced) wife of Oscar Haney. Laura Hughes’ interest in the property of course resulted from its acquisition during her subsequently-terminated marriage to Oscar Haney.

In urging that Isáac Haney was divested of all interest in the property, defendant-appellant chiefly relies upon a receipt signed by plaintiff-appellee (about six days after his purchase of Laura Hughes’ one-half interest), which reads in full:

"Oct. 11, 1943 “Received the sum of $349.42 from Oscar Haney.
“sign
"Isaac Haney.”

Certain parol evidence was introduced, subject to plaintiff’s objection the purpose of which was to prove that by the 1938 deed Oscar Haney purchased the tract in question both for himself and for his brother Isaac (each party putting up one-half of the purchase price).

Based upon this testimony, able counsel for defendant-appellant argues: (a) that since the community of Oscar and Laura Haney owned only one-half of the tract, then at dissolution thereof Laura’s one-fourth (Y2 of 1/2) was all that plaintiff Isaac could acquire from her; and/or (b) that by the receipt above stated in full, Isaac Haney sold his entire interest in the property, both his one-half he had acquired jointly with Oscar Haney and the one-fourth he subsequently purchased from Laura Haney.

We think the District Court correctly held the parol evidence so tendered to be inadmissible, both:

(1) To prove that Isaac Haney, although unnamed in the 1938 deed, was a co-purchaser of the tract with Oscar Haney. Parol evidence is not admissible to prove that the purchaser of immovables was in reality some other person than the purchaser named in the act of sale, and thus by such testimony to create title in said unnamed purchaser, Articles 2275, 2276, 2440, LSA-Civil Code; Ceromi v. Harris, 187 La. 701, 175 So. 462; Hanby v. Texas Co., 140 La. 189, 72 So. 933; Eberle v. Eberle, 161 La. 313, 108 So. 549; and the many authorities cited in these three cases; and also,

(2) To prove that the receipt above quoted in full was a sale by plaintiff of any interest whatsoever in the land in question. Where a receipt was even more explicit (stating that it was for “payment on place”, without describing the land sold), the Supreme Court held that parol evidence was inadmissible to establish the identity of the land sold; since although admissible in aid of a defective or ambiguous description, parol evidence can only be so used where there is a sufficient reference in the writing so that the title is based substantially on the writing and not essentially on the parol. Lemoine v. Lacour, 213 La. 109, 34 So.2d 392. Cases permitting parol evidence to explain a receipt as a sale relied upon by appellant, such as Guice v. Mason, 156 La. 201, 100 So. 397, were distinguished in that the writings relied upon therein contained a “substantial description” of the affected property.

Furthermore, the inadmissible parol testimony of both Isaac and Oscar Haney reflects that at the time Isaac advanced certain sums to Oscar to be used on the purchase price of the land herein involved, no clear understanding was reached between the two as to whether Oscar was purchasing the land for both of them, or whether Isaac was lending Oscar the money to be repaid when the land was sold. At various places in their testimony, both of them testified that both of these contrary intentions were correct. Because of this, and aside from other reasons why such evidence is not admissible to prove title to real estate, we cannot accede to the ingenious argument of counsel for appellant that a letter of September 25, 1943 bj counsel for plaintiff to Oscar Haney after a controversy arose, claiming for plaintiff an interest in the property in question, constitutes a sufficient description in writing, together with the receipt, as to enable the use of parol evidence to explain the receipt as a sale.

Defendant-appellant further urges, in appellate brief for the first time, that the judgment of partition should recognize that she owns individually her residence which was erected on the land subsequent to plaintiff-appellee’s acquisition from Laura Haney of his one-half interest in said tract. Whether the house indeed belongs to defendant as an improvement made by the owner on land owned by her, Articles 505, 506, LSA-Civil Code, Moore v. Blount, La. App. 2 Cir., 160 So. 319; or whether (if this makes material difference under the present facts), as an improvement erected by her on land co-owned by another, she merely had the right to be reimbursed for the cost of the materials or else to receive the value that the tract was enhanced by the improvement, Article 508, LSA-Civil Code, Lasyone v. Emerson, 220 La. 951, 57 So.2d 906, 907; Grouchy v. Williams, 161 La. 909, 109 So. 545 (these cases however concerning partitions by licitation) ; we do not feel called upon to decide at this time under the facts and pleadings of this case.

A partition in kind was ordered which, the evidence shows, contemplates defendant receiving acreage upon which her residence is situated equal in value to the acreage plaintiff shall receive, upon which is situated the house occupied by plaintiff and his (and Oscar Haney’s) mother. When the partition is presented for homologation, Article 1374, LSA-C.C., either party has the right to file a written opposition insofar as they object to the partition presented as prejudicial, Articles 1375-1377, LSA-C.C.

For the above and foregoing reasons, the judgment appealed from is affirmed.

Affirmed.

      . Objection to a question as to bow Isaac Haney’s interest in the property arose: “We have introduced a certified copy of the act of sale. The Court: Let it in, subject to the objection.” (Tr-66; see also Tr-71, 72.) We disagree with defendant-appellant’s contention that the above objection was not sufficient to preserve plaintiff’s objection to the use of parol evidence to prove a sale of and title to immovables, contrary to Article 2275, LSA-C.C.; although admittedly the objection could have been more explicit, as it was at Tr-71, 72.

      . Recognizing the weakness of the latter argument, since Oscar Haney frankly admitted he had not intended to purchase Laura’s share, because he did not realize she owned same, defendant alternatively argues that the receipt merely conveyed Isaac’s own one-half and that Isaac retains merely the one-fourth he acquired from Laura Haney.

      . Which interest was at that time denied by Oscar Haney, whose position then— before Isaac acquired Laura’s outstanding interest in the property- — -was that the sums advanced by plaintiff Isaac Haney were merely a loan to enable Oscar to buy the land.


text:
    Dr. J. H. McCLENDON, Sr., Defendant-Appellee, v. Barney Tate WALL, Plaintiff-Appellant.
    No. 4474.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Reid & Reid, Hammond, for appellant.
    Mary Purser, L. B. Ponder, Jr., Amite, for .appellee.
   TATE, Judge.

This suit arises under the provisions of LSA-R.S. 41:541 et seq., providing for the homesteading by citizens of this State of unredeemed lands adjudicated to the State for unpaid taxes. Appellant Wall appeals from judgment below annulling his homestead entry to a certain forty-acre quarter — quarter-section of land situated in Tangipahoa Parish.

Pursuant to previous application, on August 23, 1954 the Register of the State Land Office issued to Wall a Homestead Entry Certificate to the tract in question.

The statutory provisions pertinent herein are that the homesteader must make an affidavit “that the application is made honestly and in good faith for the purpose of actual settlement and cultivation and to obtain a home for himself and not for speculation”, LSA-R.S. 41:542 subd. A(2); and that the homestead applicant cannot perfect his final title or patent to the land until he proves “that he has resided upon and cultivated the land for the term of five years immediately succeeding the date of entry,” LSA-R.S. 41:544 (from which, as in the case of World War II veterans such as appellant Wall, military service may be deducted, “provided that no patent shall issue until the entryman has resided upon, improved and cultivated his homestead for a period of at least one year,” LSA-R.S. 41:591).

The land so homesteaded reverts to the State if it is proved that “the homesteader failed to establish a residence on the land so entered for six months after entry, or changed his residence therefrom for a period of six months at any time” before the expiration of the perfective period of necessary residence and cultivation, LSA-R.S. 41:549.

Under the latter section, the appellee, Dr. J. H. McClendon, on March 16, 1956-filed an opposition and notice of protest to Wall’s obtaining a final patent to the land, on the ground that Wall had not resided upon or cultivated the homesteaded tract as required by statute.

Under LSA-R.S. 41:549, 41:550, Wall appealed from the decision of the Register of the Land Office sustaining these objections and annulling the homestead entry certificate previously filed by appellant, by filing the present suit captioned “Dr. J. H. McClendon v. Barney Tate Wall” in the District Court of the parish where the property is situated. It is to be noted that these statutory sections provide that such appeals “shall be tried de novo” by the District Court. After trial, the District Court affirmed the Register’s ruling.

Parenthetically, although Wall is plaintiff in the District Court suit, said suit is captioned by his counsel similarly to the title of the administrative proceedings before the Register of the State Land Office; that is, as “Dr. J. H. McClendon v. Barney Tate Wall”, since Dr. J. H. McClendon had filed the petition of opposition before the administrative board. While there is weight to counsel for appellant’s contention that the proceedings should bear the same title as in the administrative proceedings, since properly speaking this is an appeal therefrom; in the absence of any contrary authority cited to us, we are inclined to think that the proceedings within the judicial department are distinct from those before the executive department, cf. Baham v. Vernon, La.App. 1 Cir., 42 So.2d 141, and for purposes of the judicial proceedings should be captioned in the same manner as other lawsuits filed, with the petitioner (plaintiff herein) shown as bringing same versus the defendant — at any rate, this would be less confusing.

The facts show that after receiving his homestead entry certificate on August 23, 1954, Wall removed 17 loads of timber and sold at least some thereof from the 40-acre tract before being enjoined by Dr. McClendon, who simultaneously filed affidavits with the State Register to secure revocation of the entry certificate on the ground that Wall had secured same by falsely swearing that he intended to acquire the tract “to obtain a home for himself and not for speculation,” LSA-R.S. 41:542, subd. A. On February 7, 1955, Wall built a one-room shack, 16' x 16' in dimensions, on the tract. He testified that he slept therein every night, save three or four, from that time up until the trial in November, 1956. By barbed-wire strand fence he enclosed approximately ten acres, in which he kept his horse and his child’s calf. During 1955, he raised several rows of vegetables there.

In 1956, he removed the stumps from most of the enclosed area, disked and plowed about three acres, upon which he cultivated strawberries, garden vegetables, and corn and beans, most of which were used for himself or his livestock or given to friends. He also built or moved several outhouses, such as a horse shed, etc., upon the land.

Able counsel for appellant urges most forcefully that, knowing of appellee’s continued opposition to his presence on the land, Wall did not wish to make more substantial improvements or a more expensive residence upon the land, and that the cultivation was all that was reasonably required, considering that the tract was essentially woodland and therefore the homesteader could not, without clearing same, enter upon more extensive cultivation. It is claimed that therefore the trial court erred in holding that the evidence showed that Wall did not intend to make his home on the land homesteaded.

Construing the statutory provisions in question, our Supreme Court held that the “statute contemplates the applicant’s using the property by establishing thereon a home for himself and his family and also by his serious cultivation of it”, State ex rel. City of New Orleans v. Grace, 209 La. 669, 25 So.2d 301, 302. Considering this cited case and State ex rel. Albeanese v. Grace, 211 La. 685, 30 So.2d 756, both of which denied homestead rights to lands with commercial rather than agricultural potentialities; that the homesteading privilege is restricted to 160 acres of land and is barred to anyone already owning 160 acres, LSA-R.S. 41:541; and that the privilege of homesteading land contiguous to the home place of an applicant without his residing upon the homesteaded tract is given the contiguous resident providing the sum total of the land homesteaded with the land already owned does not exceed 160 acres, LSA-R.S. 41:541: we think the manifest legislative intent of Louisiana’s homestead entry act, LSA-R.S. 41:541 et seq., to be to enable an individual to obtain from the unused lands of the State a tract upon which to establish a home and to enter into the serious agricultural cultivation thereof; and not to enable a citizen to obtain State lands to be used as a hobby or simply as an investment.

Essentially, the District Court was called upon to decide whether Wall’s homestead application to obtain without cost the valuable timber lands in question was motivated by the real intention to acquire same as a home and for the agricultural cultivation thereof, or whether on the other hand Wall’s motivation was that of an investor or speculator desiring to acquire the lands without this requisite purpose. Wall’s intent, of course, must be determined not only by his words (which might in either case proclaim the same intent), but also by his course of conduct.

As in other appeals, particularly when based upon the evaluation of the credibility of the witnesses, this Court is required to accept the District Court’s factual determinations unless same are manifestly erroneous. Jones v. Jones, 232 La. 102, 93 So.2d 917; Fouquier v. Fouquier, 231 La. 430, 91 So.2d 591. See, regarding judicial review under this statute, Baham v. Vernon, La.App. 1 Cir., 42 So.2d 141.

We cannot say that the State Register and the trial court erred in holding that Wall had not, within the meaning of the homestead entry act, resided upon or cultivated the land he sought to obtain by homestead rights, in view of the District Court’s better opportunity to evaluate Wall’s credibility (and we note that Mrs. Wall did not testify in corroboration of his alleged intent) and also of the surrounding circumstances.

Wall’s wife and stepdaughter remained at the substantial 2-story, six-room-and-bath home owned by him at the settlement of Loranger, where the postoffice was constructed on his property and owned by him, and in which his wife was postmistress; although Wall testified that his pre-school-age son slept with him every night at the shack on the homestead tract. Wall testified that he and his wife were not separated.

The federal homestead act, 43 U.S.C.A. § 161 et seq., is very similar to Louisiana’s, Sections 161 (entitlement), 162 (application), and 169 (failure to establish residence; reversion to Government) thereof being almost identical in wording to similar sections in the State act.

The facts in United States v. Bennett, 8 Cir., 296 F. 409, are very similar to the present. The entryman, whose wife had a nearby ranch, built upon the tract for which he made federal homestead entry, a small house and barn, moved some furniture there, and fenced and cultivated about 40-60 acres. He spent part of his time at the homestead site and part at his wife’s ranch, where his wife and children stayed. The court, on the grounds of fraud which required a high standard of proof, annulled the homesteader’s final patent on the ground he had not established his home upon the homesteaded property as required by law, stating: “The fact that the wife does not reside upon the land does not prevent the husband from establishing and maintaining the requisite residence, but that fact goes to the bona tides of the husband. * * * There must be a present intention of establishing a home there to the exclusion of one elsewhere. * * * And the mere personal presence of the husband on the land does not meet the requirements of the law, where he maintains a family residence elsewhere, at least in the absence of explanatory circumstances.” 296 F. 412-413. See also Whaley v. Northern Pac. Ry. Co., C.C.D.Montana, 167 F. 664, at page 669.

We note that appellant Wall specifically did not testify, for instance, that his wife intended to give up the postmistresship (which she could not hold while living on the homestead tract due to its inaccessibility) or to come and live with him upon the homesteaded tract. We do not think the District Court erred in holding that Wall’s apparent intent to maintain the family home for his wife and school age children in the settlement of Loranger, and to maintain a separate building upon the homesteaded tract in which he slept every night, did not constitute a residence upon the latter tract so as to be within the meaning of the State’s homestead entry act.

Furthermore, it appears that the major portion of the acts cultivating a very small portion of the tract in question, not more than 3-8 acres, did not take place until after Wall appeared at the office of his attorney to make the final proof under LSA— R.S. 41:544, 41:545 to obtain his patent.. We doubt, under the circumstances of this case, whether such acts indicated a sufficiently serious intent to cultivate the land as required by the homestead entry act.

We do not believe it necessary to discuss other circumstances, such as Wall’s wife’s obtaining a homestead tax exemption on the town property in March of 1955, or Wall’s referring in his testimony to the town property as “home”, which tend to corroborate the trial court’s determinations herein contrary to appellant’s contentions.

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

Affirmed.

      . After dismissal as premature of certain earlier proceedings filed in November 1954 immediately after appellant Wall appeared on the land and commencing cutting the timber, which proceedings had sought to enjoin the removal of the timber and to annul the homestead entry certificate. As to the sale of some of the timber, without authorization from the State Register, cf. the statutory provision, requiring proof that “no part of the land has been alienated or encumbered”, LSA-R.S. 41:544, before issuance of the final patent; the homestead entry certificate itself vesting no title in the entryman, iBroxton v. Davis, La.App. 1 Cir., 80 So.2d 593.

      . Although perhaps not legally material, it is noted that McOlendon had (subject to the adjudication to the State in 1932 for unpaid taxes of a prior owner in the chain of title) acquired record title to the property, possessed same as timber land marked by fire lanes and regularly inspected, and paid taxes thereupon from June of 1948 until Wall’s entry upon the land under the latter’s application for homestead rights.


author: HARDY, Justice.

text:
    J. G. MADDEN, Plaintiff-Appellee, v. Cline THOMPSON et al., Defendants-Appellants.
    No. 8697.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1657.

      R. Harmon Drew, Minden, for appellant.
    McClendon & Benton, J. F. Mclnnis, Minden, for appellees.
   HARDY, Justice.

This is a concursus proceeding filed by J. G. Madden under which he deposited in the Registry of the Twenty-Sixth Judicial District Court in and for Webster Parish the sum of $919.25 and prayed that the conflicting claims of Cline S. Thompson and Walter M. Johnston, to the amount deposited, be adjudicated by the court. After trial there was judgment in favor of Walter M. Johnston decreeing that the sum deposited in the registry of the court be paid to him; that the costs of court be deducted from the fund on deposit, and, additionally, there was judgment in favor of Johnston and against Thompson for the costs of suit. From this judgment Thompson has appealed.

Under a contract with the Louisiana Department of Highways J. G. Madden undertook certain construction work on the Cotton Valley-Leton State Highway in Webster Parish, a portion of which work Madden let out to Cline S. Thompson as a subcontractor. In the execution of his subcontract Thompson purchased gravel from property owned by Walter M. Johnston amounting to a total of 13,215 yards. Johnston claimed $919.25 as the balance due for gravel removed from his property and used by Thompson in the execution of his subcontract. Thompson, admitting an indebtedness in favor of Johnston in the sum of $258.50, claimed $660.75 out of the amount deposited in the registry of the court.

The determination of the rights of the rival claimants to the fund deposited in court hinges, and must be resolved entirely, upon the agreement as to the price of the gravel used. Johnston contends that he was to receive 15 cents per yard, while Thompson insists that the agreement fixed a price of 10 cents per yard.

Thompson and Johnston entered into a written agreement of lease, which was introduced in evidence and which specified the price to be paid for the gravel at 10 cents per cubic yard. However, it is contended by Johnston that at the time he signed the document, together with his wife and Thompson, the space provided for the fixing of the price per cubic yard was left blank and the amount fixed in the lease, as it appeared when offered in evidence, was typed in at a later date. On the other hand, Thompson testified that the figure “10” was written in the document by pencil and later typed. The diametrically opposed contentions of Johnston and Thompson on this point cannot be reconciled.

It was established on trial that sometime in March, 1956, Thompson forwarded a check for $370 to Johnston to apply on payment for gravel removed from Johnston’s land and used by Thompson up to that time. There was some misunderstanding between the parties as to the payment, and, on March 19, 1956, Johnston and Thompson visited the office of the Department of Highways engineer where the amount of gravel taken from Johnston’s land up to date of March, 1956, was computed. It was determined that 4,420 yards of gravel had been removed and used, whereupon Thompson destroyed the $370 check and delivered another check in the sum of $663 to Johnston. It is the contention of Thompson that this check was intended to cover the amount of gravel used to date and an advance on future removal and use of gravel, whereas Johnston denies this contention and claims that the payment of $663 was made and accepted in payment for the 4,420 yards of gravel removed from his land. It is significant that the price of 15 cents which was claimed by Johnston, figured upon the removal of 4,420 yards, amounts to' the exact sum of $663. We think, as did the trial judge, that this circumstance is conclusive in substantiating Johnston’s claim.

Following conclusion of the trial of this case a plea of estoppel was filed on behalf of Johnston, predicated upon the proposition that the payment of March 19th served to fix the price at 15 cents per yard, as a consequence of which Thompson was es-topped from contending for recognition of the lower price of 10 cents per yard. The exception was referred to the merits. It is noted that one of the errors urged by counsel for Thompson in brief before this court is that the plea of estoppel is without merit. We find it unnecessary to pass upon this point, inasmuch as the written opinion of the district judge makes it clear that the plea of estoppel was not considered by the court in reaching a conclusion and that the case was tried entirely upon the merits.

We find no error in the conclusion reached by the district judge and it follows that the judgment should be affirmed.

It was noted in the opinion of the district judge that some question was raised as to the taxing of costs. This point is specifically covered in the statute relating to concursus proceedings, and it is provided in LSA-R.S. 13:4816:

“The applicant depositing the money shall not be required to pay any costs in the proceedings. All of the costs of all parties plaintiffs, defendants, interveners or otherwise, to the suit, shall be paid out of the funds deposited, with preference and priority over any and all persons. However, the successful litigant for the funds deposited, may recover all costs which have been paid out of the funds deposited, from the other litigant or litigants who contested his right thereto.”

That part of the judgment which assesses the costs of this proceeding exactly conforms to the statutory provision above quoted.

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


author: ELLIS, Judge.

text:
    Louis BARBARI et al. v. FIREMEN’S INSURANCE COMPANY et al.
    No. 4458.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Sam J. D’Amico, Parker & Parker, Baton Rouge, for appellants.
    R. W. Williams, Jr., Baton Rouge, for appellees.
   ELLIS, Judge.

Plaintiffs cumulated their claims against four separate insurance companies as a result of the loss by fire of certain furniture and fixtures covered under policies issued by each of the defendants. The matter was appealed to the Supreme Court, which ordered the appeal transferred here. See 231 La. 679, 92 So.2d 580.

The cause is now before us on a Motion to Dismiss the appeal filed upon behalf of the defendants upon the grounds of five years non-prosecution of the appeal.

This motion is based upon Article 3519 of the LSA-Civil Code, which reads:

“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.
“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.
“Any appeal, now or hereafter pending in any appellate court of the State, in which five years have elapsed without any steps having been taken in the prosecution thereof, shall be considered as abandoned, and the court in which said appeal is pending shall summarily dismiss such appeal. (As amended by Acts 1954, No. 615, § 1.)”

The transcript of appeal was filed in the Supreme Court on May 21, 1951. Before the expiration of five years, on February 17, 1956, a motion to place this case on the preference Docket of the Supreme Court was filed by the plaintiffs and the case was accordingly transferred to the preference Docket and assigned for argument December 20, 1956. At that time, for jurisdictional reasons, the cause was transferred here.

The question presented is whether a motion to advance to the preference Docket is a “step in the prosecution” thereof which would interrupt the prescription against the plaintiffs’ suit.

Prior to its amendment in 1954 Article 3519 of the LSA-Civil Code had no application to cases pending on appeal. Before the amendment the jurisprudence held the plaintiff must make some formal move before the Court within the five year period intended to hasten judgment. It seems beyond contradiction that the phrase “steps having been taken in the prosecution thereof” has the same meaning in the third paragraph of the Article, which amended it, as it has in the second paragraph thereof.

In Cocke v. Cavalier, 175 La. 151, 143 So. 33, the plaintiff requested that his case be placed on the summary trial Docket of the Supreme Court, which held this move was a formal step in the prosecution of the case and was an active measure to carry on or proceed with the case.

In Sliman v. Araguel, 196 La. 859, 200 So. 280, 281, our Supreme Court, in discussing Article 3519 of the LSA-Civil Code,, stated:

“The ‘step’ in the prosecution requires a formal move before the court intended to hasten judgment. A situation arising outside the record ■cannot be considered as a step taken in the prosecution of the suit. A step in the prosecution of a suit means something done in court towards the progress of the suit in court. Lips v. Royal Insurance Co., 149 La. 359, 89 So. 213.”

We had occasion to review the jurisprudence upon this point in Sanders v. Luke, 92 So.2d 156, 158, wherein we stated:

“The above cases and the jurisprudence upon which they rely are authority for the proposition that to be step in the prosecution of the suit so as to interrupt the running of the five years’ inaction after which a plaintiff is presumed to have abandoned his suit, the action taken must be a formal move before the Court, such as a motion to fix the case for trial, or filing some motion or pleading forwarding the progress of the suit. See authorities collected, Doyle, ‘The Abandonment of a Suit — Its Effect on Prescription’, 22 Tulane Law Review 504, 508 — 511; Note, ‘What Constitutes Abandonment of Suit’, 3 La.Law Review 835.”

The motion to advance the present cause to the preference Docket of the Supreme Court was clearly a formal move and it was intended to hasten judgment. Thus it was an active step in the prosecution of the suit. In fact, it was the only step the plaintiffs could make to further the prosecution of their appeal. This motion was timely filed and under the authorities cited the motion to dismiss is without merit.

The motion to dismiss is overruled.


text:
    Eugene O. REBER v. Andrew L. ERWIN et al.
    No. 4478.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Horace R. Alexius, Jr., Covington, for appellant.
    Frederick S. Ellis, Dalton J. Barranger, Covington, for appellees.
   LOTTINGER, Judge.

This is a suit against seven defendants wherein the petitioner seeks to be adjudged the owner of certain property situated in the Parish of St. Tammany, Louisiana, and seeks damages against the Sheriff, Assessor and Clerk of Court of the Parish of St. Tammany. The Lower Court granted judgment in favor of petitioner recognizing him as the owner of the property, however, the suit, as to damages, was dismissed. The petitioner has appealed.

The record shows that petitioner acquired Lots Nos. 67, 68, 69, 70, 71 and 72 of Square 272A in the town of Mandeville, Parish of St. Tammany, State of Louisiana. The said property was acquired by petitioner from Amelia Reber, the wife of Charles Henley. On June 29, 1929 Lots Nos. 70 and 72 were sold to the State of Louisiana for taxes under the name of A. R. Hentry. On the same date, Lots Nos. 67 and 69 were sold to the State for taxes under the name of Emelia Hentry. .The petitioner alleges that at the time of the said tax sales the property was assessed in fictitious names, and was included as party defendants said fictitious parties, as well as prior owners of the property, together with the Sheriff, Assessor and Clerk of Court of the Parish of St. Tammany.

On February 22, 1957, Lots 67 and 69 were redeemed by petitioner, however, said redemption was in the name of Amelia Reber. On the said date of February 14, 1957, Lots 70 and 72 were redeemed by petitioner, but were redeemed in the name of A. R. Hentry. Petitioner claims that at the time of the tax sales the property should have been assessed in his name, and complains that the acts of redemption were not in his name. Petitioner also seeks damages against the Sheriff, Assessor and Clerk of Court in the amount of $160.37, claiming such amount as damages for which he suffered as a result of the tax sales. An attorney ad hoc was appointed to represent the fictitious and absent parties. The Lower Court awarded judgment recognizing the petitioner as the owner of said lots and gave judgment in favor of the defendants in regard to the claim for damages. The record shows that the property did actually belong to the petitioner or his author in title at the time of the tax sales. Although the tax sales were in the names of fictitious parties, and, therefore the redemption of said property was also in the name of said fictitious parties, we believe that the record establishes the rightful owner of said lots to be petitioner. The Lower Court certainly found this to be true because it adjudged petitioner to be the owner of said! lots, and we find no error in said holding by the Lower Court.

The petitioner, moreover, claims that the tax sales were absolutely null and void because of the fact that the property was assessed to fictitious parties at the time of said sales. Article 10, Section 11 of the Louisiana Constitution LSA provides as follows:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. The fact that taxes were paid on a part of the property sold, prior to the sale thereof, or that part thereof was not subject to taxation, shall not be cause for annulling the sale as to any part thereof on which the taxes for which it was sold were due and unpaid, provided that the provisions hereof shall not affect any pending suit, nor any suit which may be brought within a period of twelve months from the date of the adoption of this Constitution in which any tax sale is sought to be annulled for any of said causes.”

Under the provisions of the Constitution, any proceeding to annul the said tax sales has prescribed, and the petitioner does not claim the benefit of the exception to the Constitutional prescription which is proof of prior payment of taxes. Therefore, his claim that the tax sales were null and void was absolutely without merit.

As the tax sales were valid, the petitioner certainly has no claim against the Sheriff, Assessor and Clerk of Court for damages resulting from the tax sales. Furthermore, these officials have filed in this court an exception or plea of prescription of one, five and ten years. We believe that any right of action which he might have had of damages has long prescribed because these tax sales took place some 28 years ago. The record further shows these office holders to have changed during the said period, and we do not believe that the present office holders could be held liable for the acts of their predecessors.

We feel that the record establishes that the petitioner is the lawful owner and possessor of said property. We further feel that the right of action to annul the tax sales has prescribed under the provisions of Article 10, Section 11 of the Louisiana Constitution, and that the petitioner has no right of action for damages resulting from the tax sales of the property.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all costs of this suit to be paid by the petitioner.

Judgment affirmed.